LIBRARY  . 

THE  UNIVERSITY 
OF  CALIFORNIA 

SANTA  BARBARA 


PRESENTED  BY 

Al Ian    Nevi  ns 


JOURNAL 


DEBATES  AND  PROCEEDINGS 


IN   THE 


CONVENTION  OF  DELEGATES, 


CHOSEN    TO    REVISE    THE 


(tatitutifltt  flf  JfiMtjptfte, 


Began  and  holden  at  Boston,  November  15, 1820,  and  continued  by  Adjourn- 
ment to  January  9,  1821. 


REPORTED  FOR  THE  BOSTON  DAILY  ADVERTISER. 
NEW  EDITION, 

REVISED    AND    CORRECTED. 


BOSTON: 

PUBLISHED  AT  THE  OFFICE  OF  THE  DAILY  ADVERTISER. 

1853. 


Entered  according  to  Act  of  Congress,  in  the  year  1853,  by 
NATHAN  HALE   AND   CHARLES  HALE, 
In  the  Clerk's  Office  of  the  District  Court  of  Massachusetts. 


Dutton  &  Wentworth,  Printers,  37  Congress  Street. 


LU 

jUNIVERSITY  0  J\TIA 

SANTA  BARBARA 


PREFAC  E. 


The  present  Report  of  the  Proceedings  and  Debates  of  the 
Convention  which  assembled  at  the  State  House  in  Boston,  No- 
vember 15,  1820,  to  revise  the  Constitution  of  Massachusetts, 
was  first  published,  from  day  to  day,  in  the  Boston  Daily  Adver- 
tiser, during  the  session  of  the  Convention,  and  was  then  issued 
in  the  form  of  a  volume,  immediately  after  its  adjournment  in 
1821,  the  printing  having  been  carried  on  during  the  session.  A 
part  of  the  edition  was  ordered  by  the  Convention  to  be  distrib- 
uted among  the  members  and  other  persons,  and  the  remaining 
copies  were  immediately  taken  up  by  the  public.  It  has  been  in 
considerable  request  at  various  times,  but  not  to  such  extent  as 
was  deemed  sufficient  to  indemnify  the  expense  of  a  new  edition. 
The  recent  call  of  a  new  Convention,  for  another  revision  of  the 
Constitution,  has  awakened  so  much  interest  in  the  proceedings 
of  that  of  1820,  as  to  induce  the  reprint  now  presented  to  the 
public. 

It  has  been  considered  important  by  the  Editors  that  no  mate- 
rial alterations  should  be  made  in  the  text.  Although  there  are, 
perhaps,  some  portions  of  the  volume  which  possess  less  general 
interest  at  the  present  time  than  others,  and  might  have  been 
omitted  without  detracting  from  its  value,  and  although,  from  the 
haste  with  which  the  original  report  was  prepared,  there  were 
>  doubtless  some  expressions  in  it  which  might  have  been  improved 
upon  a  careful  revision,  the  Editors,  nevertheless,  thought  that  the 
confidence  of  the  public  would  be  justly  shaken  in  the  accuracy 
of  the  volume,  as  a  true  record  of  the  proceedings  of  the  Conven- 
tion, if  it  were  not  the  same  as  that  printed  contemporaneously 
with  its  sittings,  the  errors  of  which,  if  any  existed,  would  have 
then  been  immediately  exposed. 

The  official  journal  was  ordered  by  the  Convention  to  be  de- 
posited in  the  office  of  the  Secretary  of  the  Commonwealth  ;  but 
there  is  on  a  file  of  papers  relating  to  the  Convention,  a  contem- 


IV  PREFACE. 

porary  memorandum  of  the  then  Secretary,  stating  that  it  was 
never  placed  there,  and  it  is  not  known  where  it  is.  The  present 
volume,  therefore,  the  first  edition  of  which  went  through  the 
press  before  the  journal  could  have  been  completed,  probably 
affords  the  only  record  in  existence,  of  the  proceedings  of  the 
Convention. 

The  Editors  have  accordingly  confined  themselves  to  the  cor- 
rection of  the  few  obvious  accidental  errors  which  have  been  dis- 
covered on  a  careful  revision.  They  intended  to  supply  such 
documents  or  other  material  omissions,  had  there  been  any,  which 
might  have  arisen  from  the  haste  in  which  the  original  edition 
was  published,  but  no  opportunity  for  this  occurred,  the  original 
volume  being,  they  believe,  complete  up  to  the  date  of  its  publi- 
cation, embracing  all  the  reports  and  other  papers  of  any  impor- 
tance, which  came  under  consideration.  They  have  added  in 
an  Appendix,  such  documents  of  a  subsequent  date,  as  appeared 
necessary  to  complete  the  history  of  the  Convention. 

Where  it  has  been  thought  expedient  to  interpolate  any  re- 
marks in  the  text,  such  additions  have  been  uniformly  enclosed 
in  square  brackets,  [  ]  so  as  to  distinguish  them  from  the  original 
text.  The  present  volume,  from  the  first  of  the  pages  numbered 
with  Arabic  numerals  as  far  as  the  Appendix,  with  the  exception 
of  the  brief  additions  thus  marked,  and  the  correction  of  the  few 
obvious  errors  above  alluded  to,  contains  all,  and  only,  the  matter 
of  the  first  edition. 

The  Appendix  embraces  a  number  of  documents  of  a  date  sub- 
sequent to  the  adjournment  of  the  Convention,  which  are  neces- 
sary to  the  completeness  of  its  history,  viz. : 

A  Statement  of  the  Votes  of  the  People,  by  Counties,  on  the 
several  amendments  proposed  to  them  by  the  Convention.  This 
statement  is  given  as  printed  in  the  Boston  Daily  Advertiser,  at 
the  time,  but  as  the  footings  agree  with  those  officially  reported 
by  the  Committee  of  the  Convention  to  the  Legislature,  it  may 
probably  be  relied  on,  as  an  accurate  copy  from  the  official  re- 
turns. No  official  canvass  of  the  vote  by  towns  or  counties,  has 
been  found  at  the  State  House.  Also,  the  Proceedings  of  the 
Committee  of  the  Convention  appointed  to  meet  after  the  people 
had  voted  upon  the  amendments,  and  ascertain  the  result.  These 
proceedings  are  copied  from  their  original  report,  submitted  to  the 
Legislature,  preserved  in  the  office  of  the  Secretary  of  the  Com- 


PREFACE.  V 

monwealth.  Also,  the  action  of  the  Legislature  upon  this  report, 
— the  Resolve  passed  for  publishing  the  amendments — and  the 
Governor's  Proclamation  promulgating  them. 

Appended  to  these  will  be  found  the  whole  of  the  Constitution 
in  its  official  shape,  as  originally  established,  with  the  amend- 
ments since  adopted,  not  only  at  the  recommendation  of  the  Con- 
vention of  1820,  but  subsequently  in  the  manner  provided  by 
that  body.* 

The  copious  Index  of  the  original  edition  of  this  volume,  has 
been  carefully  revised,  and  made  to  conform  with  the  present 
edition.     It  is  believed  to  be  correct. 

N.  H. 

Boston,  April  25,  1853.  C.  H. 

*  In  1844,  Hon.  Luther  S.  dishing  prepared  a  draft  of  the  Constitution  of  Massachusetts  by 
striking  out  the  annulled  or  obsolete  portions  of  the  instrument  and  inserting  the  amendments  in 
their  proper  places.  This  draft  has  been  usually  printed  since  that  time  as  the  Constitution. 
It  fully  answered  the  purpose  for  which  it  was  designed,  viz.,  "  for  the  convenient  use  of  those 
who  desire  to  ascertain  what  the  existing  provisions  of  the  Constitution  are,  without  the  trouble 
and  labor  of  tracing  them  historically  from  the  original  instrument  through  all  the  various  amend- 
ments." Its  use,  bowever,  is  likely  to  cause  confusion,  when  a  particular  article  or  chapter  is 
referred  to,  if  the  reader  does  not  distinctly  bear  in  mind  its  character. 


NOTE 


Origin  and  History  of  the  Constitution  of  Massachusetts. 

The  royal  charter  under  which  the  Colony  of  Massachusetts  had  been  gov- 
erned, continued  in  force,  to  some  degree,  even  after  the  beginning  of  the  revo- 
lutionary contest.  Its  authority,  however,  was  almost  entirely  overthrown  by  the 
adaption,  by  the  Continental  Congress,  May  15,  1776,  of  the  resolution  declaring 
"  that  the  exercise  of  every  kind  of  authority  under  the  crown  should  be  sup- 
pressed," and  that  "  all  the  powers  of  government "  should  be  "  exerted  under  the 
authority  of  the  people  of  the  colonies."  July  4,  1776,  Independence  was  de- 
clared. In  September,  1776,  the  Massachusetts  Assembly  voted  to  take  steps  to- 
wards the  framing  of  a  form  of  government.  May  5,  1777,  they  recommended  to 
the  people  to  choose  their  representatives  to  the  next  General  Court,  "  with  full 
powers,  in  one  body  with  the  Council,  to  form  such  a  Constitution  of  Government 
as  they  shall  judge  best  calculated  to  promote  the  happiness  of  this  State,"  to  be 
subject  to  the  approval  of  a  vote  of  two-thirds  of  the  people.  At  the  session  of 
June,  1777,  a  Committee  of  twelve  was  charged  with  this  subject.  In  January, 
1778,  this  Committee  reported  a  draft  of  a  Constitution,  which  was  adopted  by  the 
General  Court,  February  28,  1778,  and  submitted  to  the  people,  March  4,  1778. 
It  was,  however,  thought  to  be  defective  and  unsatisfactory  in  many  respects  ;  ob- 
jections were  made  to  the  anomalous  nature  of  the  body  by  which  it  had  been 
framed ; — and  it  was  rejected  by  a  large  majority — five  to  one  of  the  votes  returned. 
Many  of  the  towns  made  no  returns. 

The  failure  of  this  first  effort  to  establish  a  permanent  form  of  government, 
showed  the  necessity  of  proceeding  with  more  care  and  deliberation.  According- 
ly, the  General  Court,  by  a  resolve,  passed  February  20, 1779,  directed  the  select- 
men of  towns  to  cause  the  inhabitants  to  consider  of  and  determine  upon  two  ques- 
tions :  "  Whether  they  choose  at  this  time,  to  have  a  new  Constitution  or  Form  of 
Government  made,"  and,  "  Whether  they  will  empower  their  representatives  for 
the  next  year,  to  vote  for  the  calling  a  State  Convention  for  the  sole  purpose  of 
forming  a  new  Constitution,"  in  case  the  first  question  were  answered  affirmatively. 
The  people  assented  to  both  of  these  propositions,  by  large  majorities.  Accord- 
ingly, the  General  Court,  by  a  resolve  passed  June  17, 1779,  provided  for  the  elec- 
tion of  delegates  to  a  Convention  to  meet  on  the  first  of  September  in  that  year. 

The  delegates  accordingly  assembled  September  1, 1779,  and  having  settled  the 
principles  upon  which  the  government  should  be  based,  appointed  a  Commit- 
tee of  thirty  to  prepare  a  Declaration  of  Rights  and  frame  of  a  Constitution, 
adjourned  over  to  October  28,  authorizing  the  towns  not  represented  to  choose 
delegates  meanwhile.  The  Committee  of  thirty  met  immediately,  and  after  dis- 
cussion, delegated  the  preparation  of  the  Declaration  of  Rights  to  John  Adams ; 
and  the  preparation  of  a  draught  of  a  Constitution,  to  a  sub-committee  of  three, 
viz.,  James  Bowdoin,  Samuel  Adams,  and  John  Adams,  who  committed  this  task 
also  to  John  Adams.  He  was  thus  the  original  author  of  the  whole  instrument ;  and 
with  a  few  alterations  his  draughts  appear  to  have  been  preserved.  In  the  fourth 
volume  of  his  Works,  now  publishing  under  the  editorial  supervision  of  Charles 
Francis  Adams,  the  original  draughts  are  printed  in  such  a  way  as  to  exhibit  the 
nature  and  extent  of  the  changes  made.     That  volume  also  contains  much  inter- 


NOTE.  Vll 

esting  information  upon  the  subject.  The  Journal  of  the  Convention  of  1779-80, 
was  printed  in  1832,  by  Messrs.  Dutton  &  Wentworth,  by  order  of  the  Legisla- 
ture, on  the  recommendation  of  the  Joint  Committee  of  the  Library,  of  which  Al- 
exander H.  Everett  was  chairman. 

When  the  Convention  reassembled,  October  28,  1779,  the  Committee  of  Thirty 
reported  the  Bill  of  Rights  and  Frame  of  Government  agreed  upon.  Some 
progress  was  made  in  discussing  it,  until  the  11th  of  November,  when  the  Con- 
vention adjourned  to  the  fifth  of  the  next  January,  hoping  to  secure  a  more  full 
and  constant  attendance.  January  5,  1780,  the  Convention  again  met,  but  the 
roads  being  in  a  bad  condition  for  travelling,  the  attendance  was  small.  The 
members  met  and  adjourned  from  time  to  time,  until  January  27,  when  a  sufficient 
number  being  collected  they  proceeded  to  business.  Having  finally  agreed  upon 
the  Form  of  the  Constitution,  March  2,  1780,  they  adjourned  to  the  first  Wednes- 
day of  June,  making  provision  for  obtaining  the  opinion  of  the  people  upon  it  in 
the  meanwhile.     They  also  adopted  an  address  to  the  people. 

June  7,  1780,  the  members  again  assembled,  and  it  appearing  that  the  whole 
form  was  approved  by  more  than  a  two-thirds  vote,  the  Convention,  June  16, 1780, 
declared  "  the  said  form  to  be  the  Constitution  of  Government  established  by  and 
for  the  inhabitants  of  the  State  of  Massachusetts  Bay,"  and  resolved  that  it  go 
into  effect,  except  for  the  purpose  of  making  elections,  on  the  last  Wednesday  of 
October  in  that  year. 

The  Constitution  provided  for  ascertaining  the  sense  of  the  people  in  1795,  on 
the  necessity  or  expediency  of  revising  the  instrument,  with  a  view  to  making 
amendments.  No  such  necessity  or  expediency  was  then  found  to  exist ;  and  the 
Constitution  remained  unaltered  for  forty  years.  During  the  latter  part  of  this  pe- 
riod, the  expediency  and  necessity  of  some  amendments  began  to  be  seriously  dis- 
cussed, particularly  in  relation  to  the  third  article  of  the  Bill  of  Rights — the  ex- 
cessive number  of  representatives  in  the  popular  branch  of  the  Legislature — the 
apportionment  of  senators — and  especially  the  important  change  in  the  condition  of 
the  Commonwealth,  produced  by  the  establishment  of  the  District  of  Maine  as  a 
separate  State.  Finally  it  was  determined  by  the  Legislature  of  1820,  that  a  revis- 
ion of  the  Constitution  had  become  necessary,  and  accordingly  the  act  of  1820,  re- 
lating to  the  calling  of  a  Convention,  with  which  this  Journal  begins,  was  passed. 
August  21,  the  people  voted,  11,756  yeas  to  6,593  nays,  in  favor  of  having  a  Con- 
vention, as  announced  by  Proclamation  of  the  Governor,  September  12.  The 
election  of  delegates  took  place  October  16,  and  the  Convention  assembled  No- 
vember 15.  Its  doings  are  recorded  in  the  present  volume.  They  resulted  in 
proposing  fourteen  amendments  to  the  Constitution,  of  which  nine  were  approved 
by  the  people  and  became  a  part  of  the  Constitution.  Subsequently  four  more 
amendments  have  been  added,  in  the  manner  provided  for  by  the  ninth  article  of 
amendment.  They  will  be  found  at  the  end  of  the  present  volume,  with  the  dates 
of  their  adoption. 

Finally  the  Legislature  of  1851  passed  an  act  providing  for  a  new  Convention 
to  revise  the  Constitution,  but  the  proposition  was  rejected  by  the  people,  by  a 
vote  of  60,972  in  the  affirmative  and  65,846  in  the  negative.  A  similar  act  was 
passed  by  the  Legislature  of  1852,  which  was  assented  to  by  the  people,  by 
66,416  in  the  affirmative  and  59,111  in  the  negative,  and  in  accordance  with  its 
provisions,  delegates  were  chosen  on  the  7th  of  March  last,  to  meet  in  Conven- 
tion at  the  State  House  in  Boston,  May  4,  1853. 


CONTENTS. 


Preface, iii 

Note  :  Origin  and  History  of  the  Constitution,      .     .  vi 

Advertisement  to  the  First  Edition, 1 

Act  relating  to  calling  the  Convention,   .....  3 

List  of  the  Members  of  the  Convention, 5 

Proceedings   and   Debates,    (including  the   Rules   and 

Orders  and  Reports  of  Committees,  )■ 9 

Resolves  and  Amendments  adopted  by  the  Convention,  612 

Address  of  the  Convention  to  the  People,    ....  622 

Appendix — Popular  Vote  on  the   Amendments,     .     .     .  633 

Action  of  the  Legislature, 635 

Governor's  Proclamation, 639 

The  Constitution, 640 

Index, 671 


ADVERTISEMENT  TO  THE  FIRST  EDITION. 


This  Report  of  the  Proceedings  and  Debates  in  the  Convention 
was  made  for  the  Boston  Daily  Advertiser  by  the  Editor  of  that 
paper,  who  was  a  member  of  the  Convention,  assisted  by  a  gentle- 
man of  the  bar,  [Octavius  Pickering,  Esq.,  afterwards,  for  many 
years,  Reporter  of  Decisions  of  the  Supreme  Judicial  Court,]  to 
whom  a  seat  was  assigned  by  the  President.  The  principal  design 
was  to  furnish  the  public,  from  day  to  day,  with  an  account  of  the 
proceedings,  through  that  paper ;  and  to  this  design  the  report  was 
necessarily  made  to  conform.  For  a  great  part  of  the  session,  the 
proceedings  of  each  day  were  published  in  the  morning  paper  of 
the  following  day ;  the  reporters  were  in  consequence  obliged  to 
prepare  their  reports  in  the  greatest  haste  ;  and  in  cases  in  which  the 
sittings  continued  to  a  great  length  of  time,  and  especially  when 
two  sittings  were  held  on  the  same  day  and  protracted  to  a  late 
hour  in  the  evening,  it  became  necessary,  as  well  on  account  of  the 
short  interval  for  transcribing,  as  from  regard  to  the  capacity  of  the 
paper,  to  abridge  the  debate  to  a  greater  degree  than  they  would 
otherwise  have  done.  Many  of  the  reported  speeches  are  to  be 
considered  rather  as  abridgments,  than  as  full  reports  of  those  which 
were  delivered.  It  was,  in  general,  the  object  of  the  reporters,  to 
give  the  whole  argument  in  substance,  without  being  scrupulously 
careful  to  adhere  to  the  language  of  the  several  speakers.  In  this 
design,  however,  they  may  occasionally  have  failed ;  sometimes, 
from  not  hearing  distinctly — sometimes,  perhaps,  from  not  fully 
understanding  the  scope  of  the  argument,  and  sometimes  from  not 
being  able,  through  fatigue,  to  give  proper  attention.  For  these 
reasons,  it  will  not  be  supposed  that  complete  justice  is  done  to  the 
different  speakers,  in  point  of  elegance  and  propriety  of  expression. 
1 


Z  MASSACHUSETTS    CONVENTION. 

or  that  the  same  degree  of  justice  is  done  to  each,  in  regard  to  ful- 
ness and  accuracy ;  but  the  reporters  have  endeavored,  according  to 
the  best  of  their  ability,  to  give  as  full  and  accurate  a  report  of  the 
debates  as  circumstances  would  admit. 

January,  1821. 


COMMONWEALTH  OF  MASSACHUSETTS. 


IN  THE  YEAR  OP  OUR  LORD  ONE  THOUSAND  EIGHT  HUNDRED  AND  TWENTY. 


AN  ACT 

RELATING  TO  THE  CALLING  A  CONVENTION  OF  DELEGATES  OF 

THE  PEOPLE,  FOR  THE  PURPOSE  OF  REVISING  THE 

CONSTITUTION. 

Sect.  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives,  in  General  Court 
assembled,  and  by  the  authority  of  the  same,  That  the  inhabitants  of  the  several  towns, 
districts,  and  places  within  this  Commonwealth,  qualified  to  vote  for  Senators  or 
Representatives  in  the  General  Court,  shall  assemble  in  regular  town  meetings,  to 
be  notified  in  the  usual  manner,  on  the  third  Monday  of  August  next,  and  shall,  in 
open  town  meeting,  give  in  their  votes,  by  ballot,  on  this  question :  "  Is  it  expedient 
that  Delegates  should  be  chosen,  to  meet  in  Convention,  for  the  purpose  of  revising, 
or  altering  the  Constitution  of  Government  of  this  Commonwealth  ?"  And  the  se- 
lectmen of  the  said  towns  and  districts  shall,  in  open  town  meeting,  receive,  sort, 
count,  and  declare,  and  the  clerks  thereof  shall,  respectively,  record  the  votes  given 
for  and  against  the  measure ;  and  exact  returns  thereof  shall  be  made  out,  under  the 
hands  of  a  majority  of  the  selectmen,  and  of  the  clerk,  who  shall  seal  up  and  deliver 
the  same  to  the  sheriff  of  the  county,  within  one  week  from  the  time  of  meeting,  to 
be  by  him  transmitted  to  the  office  of  the  Secretary  of  the  Commonwealth,  on  or  be- 
fore the  second  Monday  in  September  next ;  or  the  selectmen  may  themselves  trans- 
mit the  same  to  said  office,  on  or  before  the  day  last  mentioned  ;  and  all  returns  not 
then  made,  shall  be  rejected  in  the  counting.  And  the  Governor  and  Council  shall 
open  and  examine  the  returns  made  as  aforesaid,  and  count  the  votes  given  on  the 
said  question ;  and  the  Governor  shall,  by  public  proclamation,  to  be  made  on  or 
before  the  third  Monday  in  said  month  of  September,  make  known  the  result,  by  de- 
claring the  number  appearing  in  favor  of  choosing  Delegates  for  the  purpose  afore- 
said, and  the  number  of  votes  appearing  against  the  same :  And  if  it  shall  appear 
that  a  majority  of  the  votes  given  in,  and  returned  as  aforesaid,  are  in  favor  of  choos- 
ing delegates  as  aforesaid,  the  same  shall  be  deemed  and  taken  to  be  the  will  of  the 
people  of  the  Commonwealth,  that  a  Convention  should  meet  accordingly ;  and  in 
case  of  such  majority,  the  Governor  shall  call  upon  the  people  to  elect  delegates  to 
meet  in  Convention,  in  the  manner  hereinafter  provided. 

Sect.  2.  Be  it  further  enacted,  That  if  it  shall  be  declared  by  the  said  proclama- 
tion that  the  majority  of  votes  as  aforesaid  is  in  favor  of  choosing  delegates  as  above- 
mentioned,  the  inhabitants  of  the  several  towns  and  districts  within  the  Common- 
wealth, now  entitled  to  send  one  or  more  representatives  to  the  General  Court,  shall, 
on  the  third  Monday  in  October  next,  assemble  in  town  meeting,  to  be  duly  notified 
by  warrant  from  the  selectmen,  and  shall  elect  one  or  more  delegates,  not  exceeding 
the  number  of  representatives  to  which  such  town  is  entitled,  to  meet  delegates  from 
other  towns  in  Convention,  for  the  purposes  hereinafter  expressed :  And  at  such 
meeting  of  the  inhabitants,  every  person  entitled  to  vote  for  representatives  in  the 
General  Court  shall  have  a  right  to  vote  in  the  choice  of  delegates  ;  and  the  select- 
men shall  preside  at  such  elections  ;  and  shall,  in  open  meeting,  receive,  sort,  count, 
and  declare  the  votes,  and  the  clerk  shall  make  a  record  thereof,  fair  copies  of  which, 
attested  by  the  selectmen  and  clerk,  shall  be  seasonably  delivered  to  each  person 
chosen  a  delegate  as  aforesaid.  And  all  the.  laws  now  in  force,  regulating  the  duty 
and  conduct  of  town  officers,  sheriffs,  magistrates,  and  electors,  in  the  elections  of 
governor,  lieutenant  governor,  counsellors  and  senators,  and  representatives,  6hall, 


4  MASSACHUSETTS    CONVENTION. 

as  far  as  applicable,  apply  and  be  in  full  force  and  operation  as  to  all  meetings  holden, 
and  elections  and  returns  made  under  this  act,  or  which,  by  this  act,  are  required  to 
be  holden  or  made,  and  upon  the  like  forfeitures  and  penalties. 

Sect.  3.  Be  it  further  enacted,  That  the  persons  so  elected  delegates  shall  meet  in 
Convention,  in  the  State  House  in  Boston,  on  the  third  Wednesday  in  November 
next ;  and  they  shall  be  the  judges  of  the  returns  and  election  of  their  own  members, 
and  may  adjourn  from  time  to  time,  and  one  hundred  of  the  persons  elected  shall 
constitute  a  quorum  for  the  transaction  of  business  ;  and  they  shall  proceed,  as  soon 
as  may  be,  to  organize  themselves  in  Convention,  by  choosing  a  president,  and  such 
other  officers  as  they  may  deem  expedient,  and  by  establishing  proper  rules  of  pro- 
ceeding ;  and  when  organized,  they  may  take  into  consideration  the  propriety  and 
expediency  of  making  any,  and  if  any,  what  alterations  or  amendments  in  the  present 
Constitution  of  Government  of  the  Commonwealth ;  and  such  amendments,  when 
made  and  adopted  by  the  said  Convention,  shall  be  submitted  to  the  people  for  their 
ratification  and  adoption,  in  such  manner  as  the  said  Convention  shall  direct ;  and  if 
ratified  by  the  people  in  the  manner  directed  by  the  said  Convention,  the  Constitu- 
tion shall  be  deemed  and  taken  to  be  altered  or  amended  accordingly ;  and  if  not  so 
ratified,  the  present  Constitution  shall  be  and  remain  the  Constitution  of  Government 
of  this  Commonwealth. 

Sect.  4.  Be  it  further  enacted,  That  the  said  Convention  shall  establish  the  pay  or 
compensation  of  its  officers  and  members,  and  the  expense  of  its  session ;  and  His 
Excellency  the  Governor,  by  and  with  the  advice  and  consent  of  the  Council,  is  au- 
thorized to  draw  his  warrant  on  the  Treasurer  therefor. 

Sect.  5.  Be  it  further  enacted,  That  the  Secretary  of  the  Commonwealth  be  and 
he  hereby  is  directed,  forthwith  after  the  passage  thereof,  to  transmit  printed  copies 
of  this  act  to  the  selectmen  of  every  town  and  district  within  the  said  Common- 
wealth ;  and  whenever  the  Governor  shall  issue  his  proclamation,  calling  upon  the 
people  to  elect  delegates  to  meet  in  Convention  as  aforesaid,  the  said  Secretary  shall 
also,  immediately  thereafter,  transmit  printed  copies  of  said  proclamation,  attested 
by  himself,  to  the  selectmen  of  every  town  and  district  in  said  Commonwealth. 
[Approved  by  the  Governor,  June  16th,  1820.] 


CONVENTION  OF  DELEGATES 

Assembled  at  the  State  House  in  Boston,  November  15th,  1820,  for 
the  purpose  of  revising  the  Constitution  of  Massachusetts,  in  pur- 
suance of  the  law  of  June  \§th. 


LIST    OF    DELEGATES 


SUFFOLK. 

Boston — His  Honor  William  Phillips, 
Hon.  William  Gray,  Isaac  Parker,  Charles 
Jackson,*  Thomas  Dawes,  John  Davis, 
William  Prescott,  Artemas  Ward,  James 
Prince,  Esq.,  Rev.  James  Freeman,  Hon. 
John  Phillips,  Josiah  Quincy,  Peter  C. 
Brooks,  John  Welles,  Israel  Thorndike, 
Daniel  Davis,  Jonathan  Hunewell,  Rev. 
Thomas  Baldwin,  Thomas  Melville,  Esq., 
Hon.  William  Sullivan,  Redford  Web- 
ster, Esq.,  George  Blake,  Esq.,  Hon. 
Daniel  Webster,  John  T.  Apthorp,  Esq., 
Benjamin  Russell,  Esq.,  Daniel  Messin- 
ger,  Esq.,  Warren  Dutton,  Esq.,  Joseph 
Coolidge,  Esq.,  Mr.  John  Cotton,  Lemuel 
Shaw,  Esq.,  Joseph  Tilden,  Esq.,  Doct. 
John  C.  Warren,  William  Harris,  Esq., 
Samuel  Hubbard,  Esq.,  Rev.  Paul  Dean, 
Mr.  Eliphalet  Williams,  James  T.  Aus- 
tin, Esq.,  Mr.  William  Sturgis,  James 
Savage,  Esq.,  Mr.  Heman  Lincoln,  Rev. 
Henry  Ware,  Nathan  Hale,  Esq.,  Mr. 
Samuel  A.  Welles,  Mr.  Lynde  Walter, 
Mr.  George  Bond. 

Chelsea — Rev.  Joseph  Tuckerman. 
ESSEX. 

Amesbury — John  Morse,  Esq.,  Enoch 
Bartlett. 

Andover — John  Kneeland,  Stephen  Bar- 
ker. 

Beverly — Rev.  N.  W.  Williams,  Dea- 
con John  Low,  Hon.  Nathan  Dane,* 
Hon.   Robert   Rantoul. 

Boxford — Thomas  Perley. 

Bradford — Deacon  Daniel  Stickney, 
Jesse  Kimball,  Jun.,  Esq. 

Danvers — Ebenezer  Shillaber,  Caleb 
Oakes,  John  Page,  Ebenezer  King. 

Essex — Jonathan  Story. 


Gloucester — Col.  William  Pearce,  John 
Kittredge,  Esq.,  Capt.  William  W.  Par- 
rott,  Nehemiah  Knowlton,  Col.  William 
Beach,  Capt.  Elias  Davidson. 

Hamilton — Jonathan  1  .amson. 

Haverhill — Hon.  Bailey  Bartlett,  Col. 
Charles  White,  Moses  Wingate,  Esq. 

Ipsivich — John  Heard,  Nathaniel  Wade. 

Lynn — Joseph  Fuller,  Jonathan  Batch- 
elder,  Enoch  Mudge,  Jun.,  John  Love- 
joy,  Ezra  Mudge. 

Lynnfeld — Asa  T.  Newhall. 

Manchester — Col.  David  Colby. 

Marblehead — Nathan  Hooper,  J  osliua 
Prentiss,  Jun.,  Benjamin  Knight,  Nathan 
Martin,  John  H.  Gregory. 

Methuen — Stephen  Barker. 

Middleton — Rev.  Ebenezer  Hubbard. 

Newbury — Josiah  Little,  Esq.,  Rich- 
ard Pike,  Esq.,  Moses  Little,  Esq. 

Newburyport — Rev.  John  Andrews, 
Hon.  Samuel  S.  Wilde,  William  Bart- 
lett, William  B.  Bannister,  James  Prince, 
Dr.  Nathan  Noyes. 

■Rowley — Parker  Cleaveland,  Joshua 
Jewett. 

Salem — Hon.  Benjamin  Pickman,  Jo- 
seph Story,  Leverett  Saltonstall,  Gideon 
Barstow,  Esq.,  David  Cummings,  Esq. 
Stephen  White,  Esq.,  John  G.  King, 
Michael  Shepherd,  John  Derby,  Jun. 

Salisbury — Samuel  March,  Benjamin 
Evans. 

Saugus — Jonathan  Makepeace. 

Topsfield — Cyrus  Cummings. 

Wenham — John  Dodge. 

West  Newbury — Thomas  Hills. 

MIDDLESEX. 
Acton — Joseph  Noyes,  Esq. 


*  [Did  not  attend.] 


MASSACHUSETTS    CONVENTION. 


Ashby — John  Locke. 

BUlerica — Joseph  Locke. 

Bedford— William  Webber. 

Brighton — Francis  Winship. 

Burlington — None. 

Cambridge — Levi  Farwell,  Peter  Tufts, 
Jun.,  Hon.  Samuel  P.  P.  Fay. 

Carlisle — Benjamin  Barrett. 

Charlestown — Seth  Knowles,  William 
Austin,  Thomas  Harris,  Leonard  M.  Par- 
ker, George  Bartlett,  Timothy  Thompson, 
Jun. 

Chelmsford — Amos  Whitney,  Jonathan 
Pelham. 

Concord — Samuel  Hoar,  Jun.,  Esq., 
John  Keyes,  Esq. 

Dracut — Hon.  Joseph  B.  Varnum. 

Dunstable — Benjamin  Rice. 

East  Sudbury — Jacob  Reeves,  Esq. 

Framingham — John  Trowbridge,  Esq., 
Josiah  Adams,  Esq. 

Groton — Luther  Lawrence,  Esq.,  Hon. 
Samuel  Dana. 

Hollision — Elihu  Cutter,  Esq. 

Hopkinton — Joseph  Valentine,  Esq., 
Nathan  Phipps. 

Lexington — Nathan  Chandler,  Esq. 

Lincoln — Samuel  Hoar,  Esq. 

Littleton — Rev.  Edmund  Foster. 

Maiden — Elder  Ebenezer  Nelson,  Phin- 
eas  Sprague. 

Marlborough — Joel  Cranston. 

Medford—  Nathaniel  Hall,  Abner  Bart- 
lett. 

JVatick — Jonathan  Bacon. 

Newton — Gen.  Ebenezer  Cheney,  Jo- 
seph Jackson,  Esq. 

Pepperell — John  Walton,  Abel  Jewett. 

Reading — Daniel  Flint,Timothy  Wake- 
field. 

Sherburne — Calvin  Sanger. 

Shirley — Nathaniel  Holden,  Esq. 

South  Reading — William  Nichols. 

Stoneham — None. 

Stow  and  Boxborough — Joseph  Stone. 

Sudbury — William  Hunt,  Esq. 

Tewksbury — Jesse  Trull. 

Toivnsend — Samuel  Brooks,  Esq. 

Tyngsborough — None. 

Waltham — John  Clark,  David  Town- 
send. 

Watertoum — Walter  Hunnewell. 
West  Cambridge — Hon.  William  Whit- 
temore. 

Westford— John  Abbott. 
Weston — Isaac  Fiske,  Esq. 
Wilmington — William  Blanchard,  Jun. 
Woburn — John  Wade,  Marshall  Fowle. 

WORCESTER. 

Ashburnham— Silas  Willard. 


Athol — Joseph  Eastabrook. 

Barre — Nathaniel     Jones,     Nathaniel 
Houghton. 

Berlin — Amos  Sawyer. 

Bolton — Nathaniel  Longley. 

Boylston — Jonathan  Bond. 

Brookfield — Simeon  Draper,  Seth  Field. 

Charlton — John  Spurr,  Isaiah  Rider. 

Dana — Ephraim  Whipple. 

Douglas — Welcome  Whipple. 

Dudley — William  Windsor. 

Fitchburg — John  Shepley,  Calvin  Wil- 
lard. 

Gardner — William  Whitney. 

Grafton — Pardon  Aldrich. 

Hardtrick — Timothy      Page,      Joseph 
Stone. 

Harvard — Thomas  Hersey,  Rev.  Abi- 
sha  Samson. 

Holden — William  Drury. 

Hubbardston — Ephraim  Allen. 

Lancaster — Jacob  Fisher,  Davis  Whit- 
man. 

Leicester — Henry  Sargent. 

Leominster — Bezaleel    Lawrence,    Jo- 
seph G.  Kendall. 

Lunenburg — Josiah  Stearns,  Esq. 

Mendon — Hon.  Jonathan  Russell,  Dr. 
Daniel  Thurber. 

Milford — Esek  Greene. 

MUlbury — Aaron  Pierce. 

New  Braintree — Joseph  Bowman. 

Northborough — James  Keyes. 

Northbridge — Rev.  John  Crane. 

North  Brookfield — Daniel  Gilbert. 

Oakham — William  Crawford,  Jun. 

Oxford — Richard  Olney. 

Paxton — Jonathan  P.  Grosvenor. 

Petersham — Hutchins  Hapgood,  Israel 
Houghton. 

Phillipston — John  Doane. 

Princeton — Ward  N.  Boylston. 

Royalston — Rufus  Bullock. 

Rutland — Zadock  Gates. 

Shrewsbury — Nathan  Pratt. 

Southborough — Rev.  Jeroboam  Parker. 

Southbridge — Nathan  H.  Harding. 

Spencer — James  Draper,  Jun. 

Sterling — Thomas  H.  Blood,  John  Rob- 
bins,  Jun. 

Sturbridge — Rev.  Zenas  L.  Leonard. 

Sutton — Hon.    Jonas    Sibley,    Darius 
Russell. 

Templeton — Lovell  Walker. 

Upton — Ezra  Wood. 

Uxbridge — Hon.  Bezaleel  Taft,  Samuel 
Reed. 

Ward — John  Clark. 

Westborough — Nathan  Fisher,  Esq. 

West  Boylston — Robert  B.  Thomas. 

Weston — Chester  Powers. 


MASSACHUSETTS    CONVENTION. 


Westminster — Jonas  Whitney,  Edward 
Kendall. 

Winchendon — Samuel  Prentiss. 

Worcester — Abraham  Lincoln,  Esq., 
Hon.  Levi  Lincoln,  Edward  D.  Bangs, 
Esq.  ' 

HAMPSHIRE. 

Amherst — Hon.  Ebenezer  Mattoon,  Is- 
rael Scott. 

Belchertown — Eliakim  Phelps,  Philo 
Dickinson. 

Chesterfield — Barnabas  Billings. 

Cwnmington — Nehemiah  Richards. 

Easthampton — Thaddeus  Clapp. 

Goshen — Timothy  Lyman. 

Granby — Eli  Dickinson. 

Greenwich — None. 

Hadley — Moses  Porter,  Samuel  Porter. 

Hatfield—  Oliver  Smith. 

Middlefield — David  Mack,  Jun.,  Esq. 

Northampton — Hon.  Joseph  Lyman, 
Hon.  Samuel  Hinckley,  Ebenezer  Hunt, 
Jun. 

Norurich — Artemas  Knight. 

Pelham — Rev.  Winthrop  Bailey. 

Plainfield — James  Richards,  Esq. 

South  Hadley — Peter  Allen. 

Southampton — Luther  Edwards. 

Ware — William  Bowdoin. 

Westhampton — Rev.  Enoch  Hale. 

Williamsburg — John  Wells. " 

Worthington — Hon.  Ezra  Starkweather. 

HAMPDEN. 

Blandford — Enos  Boyse,  Abner  Gibbs. 

Brimjield — Israel  E.  Trask,  JohnWyles. 

Chester — Martin  Phelps. 

Granville — Amos  Foote,  Francis  Steb- 
bins. 

Holland  and  South  Brimjield — Charles 
Gardner. 

Longmeadow — Calvin  Burt. 

Ludlow — Alfred  Flower. 

Monson — Ede  Whitaker,  Deodatus 
Dutton. 

Montgomery — Oren  Parks. 

Palmer — Amos  Hamilton. 

Russell — None. 

Southwick — Enos  Foote,  Joseph  For- 
ward. 

Springfield — Hon.  George  Bliss,  Hon. 
Jonathan  Dwight,  Jun.,  Moses  Chapin, 
Oliver  B.  Morris. 

Tolland — Henry  Hamilton. 

Westfield — Hon.  Samuel  Fowler,  Jede- 
diah  Taylor,  Jesse  Farnham. 

West  Springfield — Luther  Frink,  Tim- 
othy Horton,  James  Kent. 

Wilbraham — Abel  Bliss,  Jun.,  Luther 
Stebbins. 

FRANKLIN. 

Ashfield — Henry  Bassett,  Levi  Cook. 


Bernardston — Jonathan  Allen. 

Buckland — Enos  Pomeroy. 

Charlemont — Asahel  Judd. 

Colraine— Robert  L.  McLellan,  George 
Eels. 

Conway — John  Arms. 

Deerfield — Hon.  Ephraim  Williams, 
Hon.   Elihu  Hoyt. 

Gill— Seth  S.  Howland. 

Greenfield — Elijah  Alvord. 

Hawley — Zenas  Banks. 

Heath — Jesse  Gale. 

Leverett — Roswell  Field. 

Leyden — Elisha  Chapin. 

Montague — Rev.  Aaron  Gates. 

New  Salem — Varney  Pierce. 

Northfield — Rev.  Thomas  Mason. 

Orange — Josiah  Cobb. 

Roive — None. 

Shelburne — Benoni  Pratt. 

Shutesbury — John  Conkey,  Jun. 

Sunderland — Nathaniel  Smith. 

Warwick — Jonathan  Blake,  Jun. 

Wendell — Hon.  Joshua  Green. 

Whately — Thomas  Saunderson. 

BERKSHIRE. 

Adams — JohnWaterman,  James  Mason. 

Alford— -Elihu  Lester,  Esq. 

Becket — George  Conant- 

Cheshire — Rev.  Samuel  Bloss. 

Clarksburg — None. 

Dalton — John  Chamberlain. 

Egremont — James  Baldwin,  Esq. 

Florida — None. 

Great  Barrington — Moses  Hopkins. 

Hancock — Rodman  Hazard. 

Hinsdale — Artemas  Thompson. 

Lanesborough — William  H.  Tyler. 

Lee — James  Whiton. 

Lenox — Caleb  Hyde. 

Mount  Washington — None. 

New  Ashford — None. 

New  Marlboro'' — Gen.  Ebenezer  Hyde, 
Salmon  Kasson. 

Otis— Col.  Samuel  Picket. 

Peru — Cyrus  Stowell. 

Pittsfield— Nathan  Willis,  Henry  H, 
Childs,  Jonathan  Y.  Clark. 

Richmond — Zechariah  Pierson. 

Sandisfield—  Church  Smith,  Eliakim 
Hull. 

Southfield — None. 

Savoy — None. 

Sheffield— Stephen  Dewey,  Silas  Kel- 
logg. 

Stockbridge— Joseph  Woodbndge. 

Tyringham— John  Garfield,  Esq. 

Washington— Philip  Eames. 

West  Stockbridge— Co\.  Joseph  B.  Hill. 

Williamstown— Allanson  Porter,  Ste- 
phen Hosford. 


MASSACHUSETTS    CONVENTION. 


Windsor — Daniel  Dana. 

NORFOLK. 

Bellingham — Benjamin  Hall. 

Braintree — Rev.  Richard  S.  Storrs. 

Brookline— Hon.  Richard  Sullivan. 

Canton — Jonathan  Leonard. 

Cohasset — James  C.  Doane. 

Dedham— Hon.  John  Endicott,  Hon. 
James  Richardson,  William  Ellis,  Esq. 

Dorchester— Hon.  Perez  Morton,  Hen- 
ry Gardner,  Thomas  Crehore. 

Foxborough— Seth  Boyden,  Esq. 

Franklin— Joseph  Bacon,  Eli  Richard- 
son, Jun. 

Medfield  and  Dover— Rev.  Dr.  Daniel 
C.  Saunders. 

Medway — William  Felt. 

Milton — Barney  Smith,  Jedediah  Ath- 
erton. 

Needham — Aaron  Smith. 

Quincy — Hon.  John  Adams,  Thomas 
Greenleaf. 

Randolph — Thomas  French. 

Roxbury — Henry  A.  S.  Dearborn,  Eb- 
enezer  Seaver,  Abijah  Draper,  Sherman 
Leland. 

Sharon — Benjamin  Reynolds,  Esq. 

Stoughton — Samuel  Talbott. 

Walpole — Jesse  Boyden. 

Weymouth — Lemuel  Humphrey,  Noah 
Torrey. 

Wrentham— Samuel  Day,*  Allen  Til- 
linghast,  Samuel  Bugbee. 

PLYMOUTH. 

Abington — Nathan  Gurney,  Jared 
Whitman. 

Bridgewater — Daniel  Howard,  Daniel 
Mitchell,  Howard  Cary,  Zeph  Fobes. 

Carver — Benjamin  Ellis. 

Duxbury — Rev.  John  Alleyne,  Samuel 
A.  Frazer. 

Halifax — Zebediah  Thompson. 

Hanover — Robert  Eells. 

Hanson — Calvin  Tilden. 

'Hingham — Rev.  Joseph  Richardson, 
Jotham  Lincoln,  Jun.,  Thomas  Fearing. 

Hull— None. 

Kingston — George  B.  Holmes. 

Marshfield — Rev.  Martin  Parris. 

Middleborough — Hon.  Thomas  Weston, 
John-  Tinkham,  Samuel-  Pickens,  Levi 
Pierce,  Seth  Miller,  Jun. 

Pembroke — David  Oldham,  Jun. 

Plympton — None. 

Plymouth — Barnabas  Hedge,  John  B. 
Thomas,  Joseph  Bartlett,  Jun.,  Benjamin 
Bramhall,  Nathaniel  M.  Davis. 

Rochester — Abraham  Holmes,  Gideon 
Barstow,  Jun.,  Philip  Crandon. 

Scituaie — Hon.  Charles  Turner,  Jesse 
Dunbar,  John  Collamore. 


Wareham — Benjamin  Bourne,  Esq. 

BRISTOL. 

Attleborough— Jabez  Newell,  Abiathar 
Richardson,  Jun.,  Lemuel  May. 

Berkley — Jabez  Fox. 

Dartmouth — Hon.  Holder  Slocum,  Eli- 
hu  Slocum,  Caleb  Anthony. 

Dighton — William  Wood. 

Easton— Shepherd  Leach,  Esq.,  Isaac 
Lathrop,  Alden  Spooner,*  Thomas  Nye.* 

Fairhaven — None. 

Freetown — Hon.  Nathaniel  Morton, 
Jun.,   Earl   Sampson. 

Mansfield — Solomon  Pratt. 

New  Bedford— John  A.  Parker,  James 
Howland,  2d,*  Seth  Russell,  Silas  Kemp- 
ton. 

Norton— George  Walker,  Seth  Hodges. 

Raynham — Silas  Hall. 

Rehoboth— James  Bliss,  Jeremiah 
Wheeler.    Samuel    Bullock. 

Seekonk— Robert  Daggett,  Joseph  Sis-  -, 
son,  Jun. 

Somerset — David  Gray. 

Swansey — Daniel  Hale,  John  Mason. 

Taunton — Jonas  Godfrey,  James  L. 
Hodges,  Thomas  Lincoln,  Nathan  Leon- 
ard, Robert  Dean. 

Troy— William  B.  Cannedy. 
Westport— Abner  B.   Gifford,  Tilling- 
hast  Almy,  Nathan  C.  Brownell. 

Wellington— Thomas  S.  Baylies,  Esq. 

BARNSTABLE. 

Barnstable— Nymphas  Marston,  Wil- 
liam Lewis,  Nailer  Crocker. 

Brewster — Gen.  Elijah  Cobb. 

Chatham— Capt.  Salathiel  Nickerson, 
Capt.  Joseph  Young. 

Dennis — Oren  Howe. 

Eastham— Samuel  Freeman. 

Falmouth— Thomas  Fish,  Braddock 
Dimmick. 

Harwich — None. 

Orleans — Daniel  Cumings. 

Provincetown — None. 

Sandwich— Russell  Freeman,  Elisha 
Pope,   Seth  F.   Nye. 

Truro — None. 

Wellfieet— Reuben  Arey. 

Yarmouth— Elisha  Doane,  Hon.  John 
Reed. 

DUKES. 

Chilmark — None. 

Edgartoivn — Thomas  Cook,  Jun. 

Tisbury — Shubael  Dunham. 

NANTUCKET. 
Nantucket— Josiah   Hussey,  Hezekiah 
Barnard,  Jethro  Mitchell,  Gideon  Folger, 
William  Mitchell,  Barker  Burnell. 


[Did  not  attend.] 


IN    CONVENTION. 


Wednesday,  November  15. 
The  Delegates  elected  to  meet  in  Convention  for  the  purpose  of 
revising  the  Constitution  of  this  Commonwealth,  in   pursuance   of 
the  act  of  the  16th  of  June  last,  assembled  at  the  State  House  in  the 
Representatives'  Chamber. 

At  10  o'clock,  his  Honor  William  Phillips,  the  Lieut.  Governor, 
and  a  delegate  for  the  town  of  Boston,  called  the  House  to  order. 
The  Hon.  Judge  Jackson  of  Boston,  Mr.  Pickman  of  Salem,  Mr. 
Fay  of  Cambridge,  Mr.  Sibley  of  Sutton,  and  Mr.  Fowler  of  West- 
field,  were  appointed  a  committee  to  examine  the  credentials  of  the 
members  and  report  whether  a  quorum  was  present.  The  com- 
mittee having  reported  that  a  sufficient  number  of  members  were 
duly  elected  to  proceed  to  business,  it  was  voted  that  the  House 
proceed  to  the  choice  of  a  Secretary,  and  the  Hon.  Judge  Story  of 
Salem,  Mr.  Greenleaf  of  duincy,  Russell  of  Mendon,  Mr.  Prince 
of  Boston,  and  Mr.  Bliss  of  Springfield,  were  appointed  a  committee 
to  receive  and  count  the  votes.  The  ballots  being  taken,  the  com- 
mittee reported  that  the  whole  number  of  votes  for  Secretary  was 
275,  and  that  there  were  191  for  Benjamin  Pollard,  Esq.  and  that 
he  was  chosen.  Mr.  Pollard  was  called  in,  and  was  sworn  to  the 
faithful  performance  of  the  duties  of  the  office. 

It  was  voted  that  the  House  proceed  to  the  choice  of  a  President, 
and  it  was  ordered  that  the  same  committee  receive  and  count  the 
votes.  The  ballots  being  taken  and  counted,  the  committee  re- 
ported that  the  whole  number  of  votes  was  353,  necessary  for  a 
choice  171,  that  the  Hon.  JOHN  ADAMS  had  335,  and  was  chosen. 
This  vote  being  declared,  the  Hon.  Chief  Justice  Parker  of  Bos- 
ton, rose  to  offer  a  resolution  to  the  House.  After  adverting  to  the 
advanced  age  and  renowned  character  of  the  gentleman  who  had 
been  chosen  to  preside  over  the  deliberations  of  the  House,  and  to 
the  fact  that  he  had  been  forty  years  ago  a  representative  in  the 
Convention  which  formed  the  Constitution  that  the  House  was 
now  called  upon  to  revise,  he  suggested  the  propriety  of  paying 
him  some  tribute  of  respect.  He  said  it  would  be  recollected 
that  from  the  years  1765  to  the  Revolution,  Mr.  Adams  was  one  of 
the  most  distinguished  assertors  of  the  freedom  of  his  country,  and 
made  the  boldest  stand  in  defence  of  its  rights.  By  recurrence  to 
the  journals  of  the  day,  it  would  be  found  that  the  political  research 
and  great  talents  displayed  in  the  public  proceedings,  had  great  in- 
2 


10  MASSACHUSETTS    CONVENTION. 

fluence  in  exciting  the  spirit  of  the  Revolution.     He  said  that  it 
was  remarkable  that  one  so  ardent  in  the  support  of  his  opinions 
was  able  to  check  his  own  feelings  and  those  of  the  public,  and  to 
observe  a  temperate  course  so  honorable  to  him  and  to  the  country. 
In  1770,  when  the  country  was  in  alarm  and  under  a  great  excite- 
ment in  consequence  of  the  killing  and  wounding  of  citizens  by 
the  British  soldiers  stationed  in  Boston,  this  firm  and  resolute  man, 
though  he  had  been  opposing  the  encroachments  of  the  British  gov- 
ernment, had  the  hardihood  to  come  forward  in  defence  of  the  sol- 
diers, and  shoAv  that  the  laws  were  to  govern.     In   1774  he  was 
elected  to  the  Continental  Congress  and  was  one  of  the  most  dis- 
tinguished members  of  that  body.     Though  he  did  not  draft  the 
declaration  of  independence,  he  was  one  of  the  most  able  and  res- 
olute supporters  of  it.     In  1779,  he  was  chosen  one  of  the  Delegates 
to  the  Convention  for  the  purpose  of  forming  the  Constitution  of 
this  Commonwealth.     And  in  that  body  his  labors  were  conspic- 
uous.    He  carried  to  it  a  degree  of  profound  knowledge  which  few 
men  have  possessed,  and  to  that  we  are  indebted  for  many  of  the 
excellent  provisions  of  the  Constitution.     He  was  soon  after  ap- 
pointed by  Congress  on  a  mission  to  Europe  for  the  purpose  of  con- 
ciliating the  favor  of  and  obtaining  assistance  from  the  nations  on 
the  Continent.     He  had  the  ability  and  address  to  persuade  the 
cautious  Dutch  that  it  was  for  their  interest  to  advance  money  for 
carrying  on  the  war  of  the  revolution.     He  remained  in  Europe 
during  the  war,  where  he  performed  great  services  to  his  country, 
and  had  the  courage  to  obtain  a  treaty  of  peace  on  favorable  terms 
to  us,  contrary  to  the  wishes  of  our  principal  ally.     On  his  return 
to  this  country  he  was  received  with  unreserved  public  applause. 
He  was  afterwards  associated  in  the  government  with  Washington 
as  Vice  President  of  the  United  States,  and  succeeded  him  as  Pres- 
ident.    He  had  since  lived  in  honorable  retirement  and  had  pre- 
served to  a  late  period  the  vigor  of  his  mind,  of  which  he  had  given 
frequent  proofs.     He  had  finally  been  chosen  by  the  unanimous 
voice  of  his  townsmen  to  represent  them  in  this  Convention.     Un- 
der these  circumstances,  he  (the  Chief  Justice )  thought  it  proper  to 
pay  him  the  testimony  of  their  respect,  and  he  proceeded  to  read 
the  following  resolution  : — 

Whereas  the  Hon.  John  Adams,  a  member  of  this  Convention  and  elected  the 
President  thereof,  has  for  more  than  half  a  century  devoted  the  great  powers  of  hia 
mind  and  his  profound  wisdom  and  learning  to  the  service  of  his  country  and  of 
mankind : 

In  fearlessly  vindicating  the  rights  of  the  North  American  provinces  against  the 
usurpation  and  encroachments  of  the  superintendent  government : 

In  diffusing  a  knowledge  of  the  principles  of  civd  liberty  among  his  fellow  sub- 
jects, and  exciting  them  to  a  firm  and  resolute  defence  of  the  privileges  of  freemen: 

In  early  conceiving,  asserting  and  maintaining  the  justice  and  practicability  of 
establishing  the  independence  of  the  United  States  of  America : 

In  giving  the  powerful  aid  of  his  political  knowledge  in  the  formation  of  the  con- 
stitution of  this  his  native  state,  which  constitution  became  in  a  great  measure  the 
model  of  those  which  were  subsequently  formed : 

In  conciliating  the  favor  of  foreign  powers — and  obtaining  their  countenance  and 
support  in  the  arduous  struggle  for  independence : 


MASSACHUSETTS    CONVENTION.  11 

In  negotiating  the  treaty  of  peace  which  secured  forever  the  sovereignty  of  the 
United  States,  and  in  defeating  all  attempts  to  prevent  it,  and  especially  in  preserving 
in  that  treaty  the  vital  interests  of  the  New  England  States: 

In  demonstrating  to  the  world  in  his  defence  of  the  constitutions  of  the  several 
United  States,  the  contested  principle,  since  admitted  as  an  axiom,  that  checks  and 
balances  in  legislative  power,  are  essential  to  true  liberty : 

In  devoting  his  time  and  talents  to  the  service  of  the  nation  in  the  high  and  im- 
portant trusts  of  Vice  President  and  President  of  the  United  States. 

And  lastly,  in  passing  an  honorable  old  age  in  dignified  retirement,  in  the  prac- 
tice of  all  the  domestic  virtues,  thus  exhibiting  to  his  countrymen  and  to  posterity  an 
example  of  true  greatness  of  mind  and  of  genuine  patriotism: 

Therefore  Rtsolved,  that  the  members  of  this  Convention,  representing  the  people 
of  the  Commonwealth  of  Massachusetts,  do  joyfully  avail  themselves  of  this  opportu- 
nity to  testify  their  respect  and  gratitude  to  this  eminent  patriot  and  statesman,  for 
the  great  services  rendered  by  him  to  his  country,  and  their  high  gratification  that  at 
this  late  period  of  life,  he  is  permitted  by  Divine  Providence  to  assist  them  with  his 
counsel  in  revising  the  constitution,  "which  forty  years  ago  his  wisdom  and  prudence 
assisted  to  form. 

Resolved,  that  a  committee  of  members  be  appointed  by  the  chair  to  commu- 

nicate this  proceeding  to  the  Hon.  John  Adams,  to  inform  him  of  his  election  to  pre- 
side in  this  body  and  to  introduce  him  to  the  chair  of  this  Convention. 

These  resolutions  being  seconded  by  the  Hon.  Holder  Slocumb 
and  read  from  the  chair,  on  motion  of  the  Hon.  Mr.  Webster, 
the  blank  was  filled  with  twelve,  and  it  was  ordered  that  the  com- 
mittee should  be  nominated  from  the  chair.  The  following  gen- 
tlemen were  appointed :  Hon.  Messrs.  Gray  of  Boston,  Varnum  of 
Dracut,  Morton  of  Dorchester,  Mr.  Fisher  of  Westborough,  Rev. 
Dr.  Baldwin  of  Boston,  Messrs.  Dane  of  Beverly,  Starkweather  of 
Worthington,  Boylston  of  Princeton,  Gen.  Mattoon  of  Amherst, 
Mr.  Melville  of  Boston,  Hon.  Messrs.  Hoar  of  Lincoln  and  Bart- 
lett  of  Haverhill.  Mr.  Starkweather  not  having  taken  his  seat, 
the  Hon.  Mr.  Fowler  of  Westfield  was  appointed  in  his  place. 

Mr.  Dana  of  Groton  observed,  that  nobody  was  more  ready  to 
accord  in  a  tribute  of  praise  to  the  venerable  President  elect,  than 
himself.  Yet,  perhaps,  he  might  not  vote,  in  this  case,  precisely 
for  the  same  reason,  and  on  the  same  grounds,  as  were  stated  in 
the  preamble  to  the  resolve.  This  preamble,  among  other  things, 
alluded  to  the  efforts  of  the  venerable  gentleman,  in  defeating  the 
intrigues  against  the  peace  of  1783.  This  was  founded  on  a  sup- 
position, that  the  Court  of  France  had  entered  into  intrigues,  on 
that  occasion,  against  the  United  States.  He  doubted  whether 
there  was  such  evidence  of  that  fact,  as  that  we  ought  to  assert  it. 
This  resolution  would  be  read  abroad,  as  well  as  at  home,  and  we 
ought  to  be  careful  therefore  as  to  what  is  alleged.  He  believed 
that  no  public  history  had  given  an  account  of  such  intrigues  ;  and 
we  were  in  possession  of  no  regular  documents  to  prove  the  allega- 
tion. He  doubted  therefore  the  propriety  of  making  this  declara- 
tion, under  such  circumstances. 

Mr.  Blake  of  Boston  expressed  his  satisfaction  with  the  preamble 
as  it  stood*.  He  believed  it  to  be  true,  and  that  documents  existed 
by  which  it  could  be  proved. 

Judge  Davis  of  Boston  said  it  was  a  delicate  subject,  and  doubted 
whether  the  expression  might  not  usefully  be  modified.     It  wa^ 


12  MASSACHUSETTS    CONVENTION. 

desirable,  he  thought,  to  avoid  anything  which  might  be  injuriously- 
interpreted. 

Chief  Justice  Parker  observed,  that  he  should  be  sorry  that  the 
preamble  should  contain  anything  which  should  not  be  satisfactory 
to  every  gentleman  present.  He  had  no  doubt,  however,  of  the 
truth  of  this  part  of  it.  He  had  the  pleasure  of  knowing  a  gentle- 
man, now  a  citizen  of  Maine,  an  early  friend  to  this  country,  and 
an  enlightened  friend  to  the  liberties  of  all  countries,  and  who  was 
at  that  time  in  a  situation  to  command  the  best  sources  of  informa- 
tion ;  and  from  him,  as  well  as  from  other  sources,  he  had  been 
satisfied  as  to  the  truth  of  the  statement  in  the  preamble  in  this 
particular.  He  wished,  however,  to  avoid  anything  which  might 
lead  to  a  protracted  discussion,  and  should  be  quite  willing  to  adopt 
any  modification  of  the  expression  which  should  render  the  resolu- 
tion more  conformable  to  the  sense  of  the  gentlemen  present. 

Judge  Story  observed,  that  he  had  a  view  of  this  question,  some- 
what different  from  that  taken  by  the  Hon.  gentleman  from  Groton. 
The  preamble  to  these  resolutions  professed  to  contain  a  short  sum- 
mary of  the  political  services  of  the  eminent  and  distinguished 
man,  who  had  just  been  elected  President  of  this  body — and,  for 
his  part,  he  should  have  thought  that  enumeration  of  services  most 
unsatisfactory,  if  it  had  not  made  mention  of  this,  in  his  opinion, 
most  important  and  essential  public  service.  He  believed  no  act  of 
the  venerable  gentleman's  life  had  been  more  marked  with  firmness, 
ability  and  undaunted  courage.  To  pass  over  this,  would  be,  he 
thought,  to  deprive  him  of  one  of  his  best  earned  and  most  valued 
laurels.  If  this  affair  had  not  become  matter  of  history,  it  was 
time  it  had.  Its  truth  was  well  known  to  those  of  this  generation, 
who  had  attended  to  the  subject,  and  who  were  acquainted  with 
the  history  of  the  treaty  of  1783 — and  he  thought  nothing  more  fit 
than  that  an  expression  of  the  sense  of  this  Convention,  on  this  im- 
portant topic,  should  now  be  made,  since  the  truth  of  the  fact,  he 
presumed,  existed  in  the  knowledge  and  belief  of  every  gentleman 
present.  He  gave  to  this  resolution  his  most  cordial  support  on  all 
accounts,  and  not  the  least  on  account  of  the  just  tribute  paid  to 
the  private  virtues  of  the  object  of  it ;  virtues,  by  which  it  is 
shown  how  much  the  value  of  distinguished  talents  is  increased  by 
an  association  with  spotless  character,  and  the  qualities  which  dignify 
retirement. 

A  modification  was  subsequently  made  in  the  phraseology  of  this 
part  of  the  preamble,  by  the  Hon.  mover ;  after  which  the  resolu- 
tions were  unanimously  adopted. 

The  committee  then  proceeded  to  wait  on  the  President  elect, 
and  the  resolution  was  read  to  him  by  the  Hon.  Mr.  Morton.  On 
the  return  of  the  committee  to  the  House  they  made  report,  and 
communicated  the  following  written  answer  from  Mr.  Adams  in 
which  he  declined  the  appointment. 

"  Fellow  Citizens — An  election  at  my  age  and  in  my  circumstances,  by  the  free 
suffrages  of  so  ample  a  representation  of  the  fortunes  and  talents,  the  experience  and 


MASSACHUSETTS    CONVENTION.  13 

wisdom — the  authority,  the  virtues  and  the  piety  of  the  ancient  and  renowned  state 
of  Massachusetts,  I  esteem  the  purest  and  fairest  honor  of  my  life,  and  my  gratitude 
is  proportionally  ardent  and  sincere.  I  pray  you,  gentlemen,  to  present  to  the  Con- 
vention my  most  cordial  thanks. 

"Your  enumeration  of  services  performed  for  this  country,  recals  to  my  recollec- 
tion the  long  services  and  succession  of  great  and  excellent  characters  with  whom  I 
have  had  the  honor  to  act  in  the  former  part  of  my  life,  and  to  whose  exertions  I  have 
endeavored  to  add  my  feeble  aid ;  characters  who  have  been  employed  by  Divine 
Providence,  as  instruments  in  preserving  and  securing  that  unexampled  liberty  which 
this  nation  now  possesses. 

"  That  liberty  which  is  the  source  of  all  our  happiness  and  prosperity — a  prosperity 
which  cannot  be  contemplated  by  any  virtuous  mind  without  gratitude,  consolation 
and  delight — may  it  be  perpetual.  Gentlemen,  as  my  age  is  generally  known,*  it 
will  readily  be  believed  that  my  forces  are  too  far  exhausted  to  perform  the  arduous 
duties  of  the  high  office  which  the  benevolence  of  the  Convention  has  assigned  to  me. 

"  I  am  therefore  under  the  necessity  to  request  permission  of  the  Convention 
to  decline  the  appointment,  and  to  pray  that  some  other  gentleman  may  be  elected, 
whose  vigorous  age,  and  superior  talents,  may  conduct  their  deliberations  with  more 
convenience  to  themselves,  and  with  greater  satisfaction  to  the  people  of  the  Com- 
monwealth at  large.  JOHN    ADAMS." 

This  answer  having  been  read,  on  motion  of  the  Hon.  Mr.  Bliss, 
it  was  resolved  that  the  House  proceed  to  the  choice  of  a  President 
in  the  place  of  the  Hon.  John  Adams,  who  declined  the  appoint- 
ment. It  was  ordered  that  the  Hon.  Messrs.  Wells  of  Boston, 
Lyman  of  Northampton,  Lincoln  of  Worcester,  Davis  of  Plymouth, 
and  Sullivan  of  Brookline,  be  a  committee  to  receive  and  count 
the  votes.  The  ballots  being  taken,  the  committee  reported  that 
the  whole  number  of  votes  was  388,  necessary  for  a  choice  195,  that 
the  Hon.  Isaac  Parker  had  195,  and  was  chosen.  The  other  votes 
were  for  Hon.  Judge  Story  130,  Hon.  John  Phillips  52,  and 
eleven  scattering. 

This  result  being  declared,  Chief  Justice  Parker  addressed  the 
House  in  substance  as  follows : 

He  said  he  felt  highly  honored  by  the  appointment.  That  he 
had  been  for  thirty  years  unaccustomed  to  the  proceedings  of  delib- 
erative bodies,  and  was  probably  not  so  competent  as  many  gentle- 
men about  him  to  perform  the  duties  of  the  office  ;  but  he  felt  it 
his  duty  to  accept,  trusting  that  many  gentlemen  more  versed  in 
the  forms  of  proceedings  in  legislative  bodies  would  aid  him  with 
their  advice  and  counsel.  He  could  undertake  that  in  the  exercise 
of  his  duties  he  would  be  strictly  impartial,  and  that  he  would  be 
ready  to  listen  to  the  superior  wisdom  of  those  about  him.  If  he 
had  preconceived  opinions  with  respect  to  the  constitution  they 
should  not  interfere  with  the  impartial  discharge  of  his  duty.  It 
would  be  one. object  to  preserve  order  in  the  deliberations  and  pro- 
ceedings of  the  House.  This  would  not  be  difficult,  seeing  how 
the  House  was  composed,  being  a  fair  representation  of  a  people 
remarkable  for  their  habits  of  order  and  decorum.  With  respect  to 
anything  in  which  greater  experience  was  requisite,  he  should  rely 
on  the  aid  of  gentlemen  capable  of  rendering  the  assistance  he  should 

*  [Mr.  Adams  was  born  Oct.  30,  1735.  He  was  accordingly  at  this  time  in  ihe  SGlh  vear  of  his 
age.] 


14  MASSACHUSETTS    CONVENTION. 

require.     He  proceeded  to  declare  his  acceptance  of  the  appoint- 
ment, and  was  conducted  to  the  chair. 

On  motion  ©f  Gen.  Varnum  of  Dracut,  it  was  ordered  that  the  Sec- 
retary be  directed  to  furnish  a  competent  number  of  copies  of  the 
Constitution  of  the  Commonwealth  interleaved,  for  the  use  of  the 
members  of  the  House. 

On  motion  of  Mr.  Prince  of  Boston,  the  House  resolved  that  they 
would  now  attend  prayers.  On  the  invitation  of  the  President,  the 
Rev.  Dr.  Freeman  led  in  the  devotions  of  the  House. 

On  motion  of  the  Hon.  Mr.  Morton  of  Dorchester,  it  was  ordered 
that  a  chair  should  be  provided  on  the  right  of  the  President,  and 
appropriated  as  the  permanent  seat  of  the  Hon.  JOHN  ADAMS. 

On  motion  of  Lieut.  Governor  Phillips,  modified  at  the  sugges- 
tion of  Judge  Dana,  it  was  ordered,  that  a  committee  be  appointed 
for  arranging  the  seats  of  the  members,  and  providing  suitable  seats 
for  the  accommodation  of  His  Excellency  the  Governor  and  the 
members  of  the  Council  when  they  should  choose  to  attend  the 
Convention.  This  committee  consisted  of  Messrs.  Dana,  Russell  of 
Boston,  Parker  of  Charlestown,  Abbott  of  Westford,  and  Hunt  of 
Northampton. 

On  motion  of  Mr.  Russell  of  Boston,  a  committee  was  appointed 
on  the  election  and  returns  of  delegates,  consisting  of  Messrs.  Dana, 
Richardson  of  Dedham,  Hubbard  of  Boston,  Cummings  of  Salem, 
Bangs  of  Worcester,  Hodges  of  Taunton,  and  Moses  Porter  of 
Hadley. 

On  motion  of  Mr.  Shaw  of  Boston,  it  was  ordered  that  a  com- 
mittee be  appointed  to  report  Rules  and  Orders  for  the  regulation  of 
the  House,  and  that  in  the  mean  time  the  rules  and  orders  of  the 
House  of  Representatives  be  the  rules  of  the  Convention  as  far  as 
they  are  applicable.  This  committee  was  composed  of  Messrs. 
Shaw,  Leland  of  Roxbury,  Saltonstall  of  Salem,  Locke  of  Ashby, 
and  Parker  of  Charlestown. 

Mr.  Webster  of  Boston  presented  the  remonstrance  of  Gamaliel 
Bradford  and  others  inhabitants  of  Charlestown,  against  the  election 
of  Leonard  M.  Parker,  one  of  the  delegates  returned  for  that  town, 
on  account  of  the  irregular  proceedings  of  the  selectmen  who  pre- 
sided at  the  election.  The  ground  of  objection  is,  that  a  vote  hav- 
ing passed  to  elect  six  delegates,  and  a  ballot  for  six  having  resulted 
in  the  choice  of  five  persons  only,  a  motion  was  made  that  the  vote 
should  be  rescinded  so  far  as  related  to  the  election  of  a  sixth — and 
that  the  five  persons  chosen  should  be  the  delegates  for  the  town — 
which  motion  the  selectmen  refused  to  put,  as  well  as  an  appeal 
from  the  decision  of  the  selectmen  that  the  motion  was  irregular. 
A  new  ballot  was  called  for,  and  at  eight  or  nine  o'clock  it  was  de- 
clared that  Mr.  Parker  was  elected.  This  remonstrance  was  refer- 
red to  the  committee  on  elections  and  returns. 

On  a  motion  of  Mr.  Russell  of  Boston,  it  was  ordered  that  a 
messenger  to  the  House  should  be  appointed  with  authority  to  ap- 
point such  assistance  as  should  be  necessary.  The  President  ap- 
pointed Jacob  Kuhn  to  this  office. 


MASSACHUSETTS    CONVENTION.  15 

Mr.  Webster  moved  that  the  Chaplains  of  the  two  houses  of  the 
Legislature  be  requested  to  officiate  alternately  as  the  Chaplains  to 
the  Convention.  Before  this  motion  was  disposed  of,  an  adjourn- 
ment was  called  for,  and  after  agreeing,  on  motion  of  Mr.  Prince, 
that  the  hour  of  meeting  daily  should  be  ten  o'clock  in  the  morning 
until  otherwise  ordered,  the  House  adjourned. 


Thursday,  November  16. 

At  10  o'clock  the  President  took  the  chair.  The  Hon.  John 
Adams  was  introduced  by  a  committee  appointed  for  the  purpose, 
and  conducted  to  the  seat  assigned  him  on  the  right  of  the  Presi- 
dent. As  he  entered,  the  members  of  the  Convention  rose  and  stood 
uncovered  until  he  was  seated. 

The  Convention  attended  prayers  offered  by  the  Rev.  Dr.  Bald- 
win on  invitation  of  the  President,  no  Chaplain  having  been  chosen. 

Gen.  Porter  of  Hadley,  Messrs.  Greenleaf  of  Q,uincy,  Endi- 
cott  of  Dedham,  Howard  of  Bridgewater,  and  Valentine  of  Hop- 
kinton  were  appointed  Monitors  of  the  Convention. 

The  order  of  the  day,  being  Mr.  Webster's  motion  that  the  Chap- 
lains of  the  two  houses  of  the  General  Court  should  be  requested 
to  serve  as  Chaplains  of  the  Convention,  was  called  up. 

Col.  Turner  of  Scituate  moved  as  a  substitute  to  the  motion, 
that  the  several  clergymen  of  different  denominations  in  the  town 
of  Boston,  should  be  requested  to  officiate  alternately.  This  motion 
was  declared  to  be  out  of  order.  Mr.  Webster's  motion  was  put  and 
carried  in  the  affirmative.     For  the  motion  232. 

Mr.  Shaw,  from  the  committee  appointed  to  report  rules  and  or- 
ders for  the  regulation  of  the  Convention,  made  a  report.  The 
report,  with  the  amendment  subsequently  adopted,  was  as  follows : 

RULES  AND  ORDERS, 

To  be  observed  in  the  Convention  of  Delegates  for  the  Common- 
wealth of  Massachusetts,  met  on  Wednesday,  the  15th  of  Novem- 
ber, 1820. 

CHAPTER  I. 

Of  the  Duties  and  Powers  of  the  President. 

Sect.  1.  The  President  shall  take  the  chair  every  day,  precisely  at  the  hour  to 

which  the  Convention  may  have  adjourned  ;  shall  call  the  members  to  order,  and  on 

the  appearance  of  a  quorum,  shall  cause  the  journal  of  the  preceding  day  to  be  read 

and  proceed  to  business. 

Sect.  2.  He  shall  preserve  decorum  and  order;  he  may  speak  to  points  of  order  in 
preference  to  other  members,  and  shall  decide  all  questions  of  order  subject  to  an 
appeal  to  the  Convention,  on  motion  of  any  member  regularly  seconded. 

Sect.  3.  He  shall  declare  all  votes  ;  but  if  any  one  member  doubts  the  vote,  the 
President  shall  order  a  return  of  the  convention,  with  the  numbers  voting  in  the  af- 
firmative and  in  the  negative,  and  shall  declare  the  result. 

Sect.  4.  He  shall  rise  to  put  a  question  or  address  the  Convention,  but  may  read 
sitting. 

Sect.  5.  In  all  cases,  the  President  may  vote. 

Sect.  6.  When  the  Convention  shall  determine  to  go  into  a  committee  of  the 
whole,  the  President  shall  appoint  the  member  who  shall  take  the  chair. 


16  MASSACHUSETTS    CONVENTION. 

Sect.  7.  When  any  member  shall  require  a  question  to  be  determined  by  yeas 
and  nays,  the  President  shall  take  the  sense  of  the  Convention  in  that  manner,  pro- 
vided that  one  fifth  of  the  members  present  are  in  favor  of  it. 

Sect.  8.  He  shall  propound  all  questions,  in  the  order  they  were  moved,  unless 
the  subsequent  motion  shall  be  previous  in  its  nature ;  except  that  in  naming  sums 
and  fixing  times,  the  largest  sum  and  the  longest  time  shall  be  first  put. 

Sect.  9.  After  a  motion,  being  seconded,  is  stated  or  read  by  the  President,  it 
shall  be  deemed  to  be  in  possession  of  the  Convention,  and  shall  be  disposed  of  by 
vote  of  the  Convention ;  but  the  mover  may  withdraw  it  at  any  time  before  a  decis- 
ion or  amendment. 

Sect.  10.  When  a  question  is  under  debate,  no  motion  shall  be  received  but  to 
adjourn, — to  lay  on  the  table, — for  the  previous  question, — to  postpone  indefinitely, — 
to  postpone  to  a  day  certain, — to  commit,  or — to  amend ;  which  several  motions  shall 
have  precedence,  in  the  order  in  which  they  stand  arranged. 

Sect.  11.  The  President  shall  consider  a  motion  to  adjourn  as  always  in  order, 
and  it  shall  be  decided  without  debate. 

Sect.  12.  He  shall  put  the  previous  question  in  the  following  form,  "  shall  the 
main  question  be  now  put,"  and  all  amendments  or  further  debate  of  the  main  ques- 
tion shall  be  suspended,  until  the  previous  question  be  decided ;  and  the  previous 
question  shall  not  be  put,  unless  a  majority  of  the  members  present  are  in  favor  of  it. 

Sect.  13.  When  two  or  more  members  happen  to  rise  at  once,  the  President  shall 
name  the  member  who  is  first  to  speak. 

Sect.  14.  All  committees,  except  such  as  the  Convention  shall  from  time  to  time 
determine  to  select  by  ballot,  shall  be  nominated  by  the  President. 

Sect.  15.  The  President  shall  have  the  general  direction  of  the  Hall  of  the  Con- 
vention, and  of  the  Galleries.  No  person  excepting  members,  officers  and  attendants 
of  the  Convention  and  such  persons  as  may  be  invited  by  the  Convention,  or  by  the 
President  shall  be  admitted  within  the  Hall.  The  chairman  of  each  committee  of 
the  whole,  during  the  sitting  of  such  committee,  shall  have  the  like  power  of  preserv- 
ing order  in  the  hall  and  in  the  galleries. 

CHAPTER  II. 

Of  the  Rights,  Duties  and  Decorum  of  Members. 

Sect.  1.  When  any  member  is  about  to  speak  in  debate  or  deliver  any  matter  to 
the  Convention,  he  shall  rise  and  respectfully  address  the  President ;  he  shall  con- 
fine himself  to  the  question  under  debate,  and  avoid  personality.  He  shall  sit  down 
as  soon  as  he  has  done  speaking. 

Sect.  2.  No  member  in  debate  shall  mention  a  member  then  present  by  his 
name ,  but  may  describe  him  by  the  town  he  represents,  the  place  he  sits  in,  or  such 
other  designations  as  may  be  intelligible  and  respectful. 

Sect.  3.  No  member  speaking  shall  be  interrupted  by  another,  but  by  rising  up 
to  call  to  order,  or  to  correct  a  mistake.  But  if  any  member  in  speaking  or  other- 
wise, transgress  the  rules  of  the  Convention,  the  President  shall,  or  any  member 
may,  call  to  order,  in  which  case,  the  member  so  called  to  order,  shall  immediately 
sit  down  unless  permitted  to  explain,  and  the  Convention  shall,  if  appealed  to,  decide 
on  the  case,  but  without  debate  ;  if  there  be  no  appeal,  the  decision  of  the  chair  shall 
be  submitted  to. 

Sect.  4.  No  member  shall  speak  more  than  twice  to  the  same  question,  without 
first  obtaining  leave  of  the  Convention,  nor  more  than  once,  until  all  other  members 
desiring  to  speak,  shall  have  spoken. 

Sect.  5.  When  any  member  shall  make  a  motion,  and  such  motion  shall  be  sec- 
onded by  another,  the  same  shall  be  received  and  considered  by  the  Convention,  and 
not  otherwise ;  and  no  member  shall  be  permitted  to  lay  a  motion  in  writing  on  the 
table,  until  he  has  read  the  same  in  his  place,  and  the  same  has  been  seconded. 

Sect.  6.  Every  motion  shall  be  reduced  to  writing  if  the  President  direct  it.  or 
at  the  request  of  any  member  of  the  Convention. 

[Sec.  7,  not  accepted  but  recommitted.] 

Sect.  8.  No  member  shall  be  permitted  to  stand  up  to  the  interruption  of  another, 
whilst  any  member  is  speaking,  or  pass  unnecessarily  between  the  President  and  the 
person  speaking. 

Sect.  9.  When  a  vote  is  declared  by  the  President,  and  any  member  rises  to 
doubt  the  vote,  the  Convention  shall  be  returned  and  the  vote  made  certain,  without 
any  further  debate  upon  the  question. 

Sict.  10.     Every  member  neglecting  to  give  his  attendance  in  Convention  for 


MASSACHUSETTS    CONVENTION.  17 

more  than  six  days  after  the  commencement  of  the  session,  shall  be  held  to  render 
the  reason  of  such  neglect;  and  in  case  the  reason'assigned  shall  be  deemed  suffi- 
cient, such  member  shall  be  entitled  to  receive  pay  for  his  travel,  but  not  otherwise. 
No  member  shall  be  absent  more  than  two  days  without  leave  of  the  Convention, 
and  no  leave  of  absence  shall  avail  any  member,  who  retains  his  seat  more  than 
five  days  from  the  time  the  same  was  obtained. 

Sect.  11.  All  papers  relative  to  any  business  before  the  Convention  shall  be  left 
with  the  secretary,  by  any  member  who  may  obtain  leave  of  absence,  having  such 
papers  in  his  possession. 

Sect.  12.  When  any  member  shall  violate  any  of  the  rules  and  orders  of  the 
Convention,  and  the  Convention  shall  have  determined  that  he  has  so  transgressed, 
he  shall  not  be  allowed  to  speak  or  vote,  until  he  has  made  satisfaction,  unless  by 
way  of  excuse  for  the  same. 

Sect.  13.  Every  member  who  shall  be  in  the  Convention  when  a  question  is  put, 
shall  give  his  vote,  unless  the  Convention,  for  special  reasons,  shall  excuse  him. 

Sect.  14.  On  a  previous  question,  no  member  shall  speak  more  than  once,  with- 
out leave. 

Sect.  15.  A  motion  for  commitment,  until  it  is  decided,  shall  preclude  all  amend- 
ment of  the  main  question. 

Sect.  16.  All  motions  and  reports  may  be  committed  or  recommitted,  at  the 
pleasure  of  the  Convention. 

Sect.  17.  The  division  of  a  question  may  be  called  for,  where  the  sense  will 
admit  of  it ;  but  a  question  to  strike  out  and  insert  shall  be  deemed  indivisible. 

Sect.  18.  When  the  reading  of  a  paper  is  called  for,  and  the  same  is  objected 
to  by  any  member,  it  shall  be  determined  by  a  vote  of  the  Convention. 

Sect.  19.  The  unfinished  business,  in  which  the  Convention  was  engaged  at  the 
time  of  the  last  adjournment,  shall  have  the  preference  in  the  orders  of  the  day,  and 
no  motion  or  any  other  business  shall  be  received  without  special  leave  of  the  Con- 
vention, until  the  former  is  disposed  of. 

Sect.  20.  No  standing  rule  or  order  of  the  Convention  shall  be  rescinded  or 
changed,  without  one  day's  notice  being  given  of  the  motion  therefor. 

Sect.  21.  When  a  vote  is  doubted,  the  members  for  or  against  the  question, 
when  called  on  by  the  President,  shall  rise  and  stand  uncovered,  until  they  are 
counted. 

CHAPTER  III. 
Of  the  appointment  and  duties  of  Monitors. 

Sect.  1.  One  Monitor  shall  be  appointed  by  the  President  for  each  division  of 
the  Convention,  whose  duty  it  shall  be  to  see  the  due  observance  of  the  orders  of  the 
Convention,  and  on  demand  of  the  President,  or  of  the  chairman  in  committee  of  the 
whole,  to  return  the  number  of  votes  and  members  in  their  respective  divisions. 

Sect.  2.  If  any  member  shall  transgress  any  of  the  rules  or  orders  of  the  Conven- 
tion, and  shall  persist  therein  after  being  notified  thereof  by  any  Monitor,  it  shall  be 
the  duty  of  such  Monitor  to  give  information  thereof  to  the  Convention. 

Sect.  3.  In  case  the  President  shall  be  absent  at  the  hour  to  which  the  Conven- 
tion stands  adjourned,  the  Secretary  shall  call  the  Convention  to  order,  and  shall 
preside  until  a  President  pro  tempore  shall  be  chosen,  which  shall  be  the  first  busi- 
ness of  the  Convention. 

CHAPTER  IV. 
Of  Communications,  Committees,  Reports,  and  Resohdions. 

Sect.  1.  All  memorials  and  other  papers,  addressed  to  the  Convention,  shall  be 
presented  by  the  President,  or  by  a  member  in  his  place,  and  shall  lie  on  the  table, 
to  be  taken  up  in  the  order  in  which  they  were  presented,  unless  the  Convention 
shall  otherwise  direct. 

Sect.  2.  No  committee  shall  sit,  during  the  sitting  of  the  Convention,  without 
special  leave. 

Sect.  3.  The  rules  of  proceeding  in  Convention  shall  be  observed  in  a  committee 
of  the  whole,  so  far  as  they  may  be  applicable,  excepting  the  rule  limiting  the  times 
of  speaking;  but  no  member  shall  speak  twice  to  any  question,  until  every  member 
choosing  to  speak  shall  have  spoken. 

Sect.  4.  Every  motion  or  resolution,  which  proposes  an  alteration  in  the  consti- 
tution, and  all  reports  of  Committees,  appointed  to  consider  the  propriety  and  expe- 
diency of  making  any  alteration  therein,  shall  be  discussed  in  committee  of  the 
whole,  before  they  are  debated  and  finally  acted  upon  in  Convention. 

3 


18  MASSACHUSETTS    CONVENTION. 

Sect.  5.  Every  resolution  of  the  Convention,  proposing  any  alteration  in  the 
constitution,  shall  be  read  on  two  several  days,  before  it  is  finally  acted  upon  and 
adopted  by  the  Convention. 

Sect.  6.  In  all  elections  by  ballot,  of  committees  of  the  Convention,  the  person 
having  the  highest  number  of  votes  shall  act  as  chairman  ;  and  when  the  committee 
is  nominated  by  the  Chair,  the  person  first  named  shall  be  chairman. 

A  rule  in  the  original  report,  providing  that  in  case  the  President 
should  be  absent  at  the  time  for  calling  the  House  to  order,  one  of 
the  monitors  should  call  the  House  to  order,  and  preside  until  a  Pres- 
ident pro-tempore  should  be  chosen,  was  the  subject  of  some  de- 
bate. The  rule  was  finally  altered  so  as  to  make  it  the  duty  of  the 
Secretary  to  preside  in  the  case  specified. 

Mr.  Bliss  of  Springfield  moved  to  amend  the  rule  providing  for 
the  case  of  reconsideration,  in  such  manner  that  no  vote  of  the 
House  should  be  reconsidered,  except  on  motion  of  a  member  who 
voted  with  the  majority. 

A  member,  whose  name  we  did  not  learn,  objected  to  the  amend- 
ment, that  it  would  preclude  any  one  who  was  absent,  or  did  not 
vote,  from  the  right  of  moving  a  reconsideration. 

Mr.  Webster  said  that  it  was  proper  it  should  operate  in  that 
manner  ;  it  was  the  duty  of  every  member  to  be  present.  No  one 
should  be  absent  flattering  himself  that  he  might  remedy  any  mis- 
chief that  he  conceived  to  be  done  in  his  absence,  by  moving  a  re- 
consideration of  the  subject. 

Mr.  Dana  of  Groton  observed  that  we  ought  to  guard  against 
trammelling  ourselves  with  too  much  regulation.  He  thought  it  im- 
proper that  the  right  of  moving  for  reconsideration  should  be  con- 
fined to  one  who  voted  in  the  majority.  We  are  in  the  habit  of 
reviewing  our  proceedings,  and  an  opportunity  for  reconsideration 
should  be  open.  Besides,  it  might  be  unpleasant  for  a  member  in 
the  minority,  to  be  under  the  necessity  of  supplicating  one  in  the 
majority,  to  make  a  motion  for  him. 

Mr.  Q,uincy  of  Boston  said,  that  from  the  very  nature  of  a  pro- 
position for  reconsideration  it  should  come  from  the  majority.  It  is 
a  proposition  to  review,  for  the  purpose  of  furnishing  the  opportu- 
nity for  members  to  vote  differently  from  what  they  had  already 
voted.  The  motion  therefore  should  come  from  one  who  wished 
this  opportunity,  and  not  from  those  who  were  satisfied  with  the 
vote  they  had  given,  and  only  wished  to  bring  the  majority  to  their 
opinion.  He  said,  also,  that  it  was  improper  that  a  member  who 
has  had  the  opportunity  of  urging  his  views  and  been  overruled  by 
the  House,  should  have  the  power  of  renewing  it  under  the  shape  of 
a  reconsideration. 

Mr.  Slocumb  of  Dartmouth  said  that  he  was  afraid  we  were  pur- 
suing a  shadow  and  losing  the  substance.  That  by  endeavoring  to 
save  time  by  limiting  the  right  of  reconsideration,  we  might  be  dis- 
abled from  coming  to  the  most  mature  results ;  that  a  minority  of 
great  talents  because  they  were  out-voted  would  be  deprived  of  the 
opportunity  of  enlightening  the  majority  and  inducing  them  to 
change  their  opinion,  unless  some  one  would  accommodate  them  by 
making  the  motion. 


MASSACHUSETTS    CONVENTION.  19 

Mr.  Webster  said  he  considered  the  rale  to  be  of  great  import- 
ance ;  he  wished  every  subject  which  came  before  the  Convention 
to  be  thoroughly  discussed,  but  he  wished  it  to  be  done  according  to 
the  rules  of  legislative  bodies,  which  amply  provided  for  mature 
deliberation,  and  guarded  against  surprise  by  requiring  every  act  to 
pass  through  several  readings  at  prescribed  periods.  Every  member 
conversant  with  the  proceedings  of  deliberative  assemblies  must  have 
observed  the  inconvenience  from  the  practice  of  frequently  recon- 
sidering votes  which  have  been  passed.  No  vote  should  pass 
without  every  member  being  ready  to  act  upon  it  at  the  several 
stages. 

Mr.  Sibley  of  Sutton  said  he  had  another  objection  to  the  amend- 
ment of  the  member  from  Springfield  ;  that  it  was  impossible  to  tell 
who  did  vote  in  the  majority,  and  that  some  mode  therefore  of  as- 
certaining this  should  be  inserted  in  the  rule.  He  was  however 
himself  opposed  to  the  whole  amendment. 

Mr.  GIuincy  said  that  if  the  question  had  been  taken  by  yeas  and 
nays,  it  would  appear  on  the  journals  who  voted  in  the  majority, 
and  in  any  case,  the  member  moving  for  a  reconsideration  would 
show  his  right  to  make  the  motion  by  stating  that  he  had  so  voted. 

Mr.  Foster  of  Littleton  said  he  was  not  satisfied  with  the  rule. 
He  said  we  were  debarred  by  it  of  privileges  to  which  we  had  been 
accustomed.  It  had  been  urged  that  it  would  shorten  debate,  but 
he  said  that  a  minority  might  convince  the  majority  and  it  was  more 
important  to  come  to  a  right  decision  than  to  save  the  time  of  the 
Convention. 

Mr.  Prince  of  Boston  spoke  against  the  amendment.  He 
agreed  that  it  was  the  duty  of  members  to  be  present.  But  a 
member  from  one  of  the  neighboring  towns  might  go  home  on 
Saturday  with  the  best  intentions  of  returning  on  Monday,  but  be 
prevented  by  a  storm  or  accident.  He  thought  that  in  any  such 
case  they  ought  not  to  be  precluded  from  the  right  of  being  heard. 

Mr.  Mattoon  of  Amherst  moved  that  this  article  should  be  re- 
committed to  the  committee  who  reported  it. 

Mr.  Dawes  of  Boston  opposed  the  recommitment,  and  expressed 
his  hope  that  the  motion  to  amend  would  prevail,  for  the  reasons 
that  had  been  stated,  and  for  the  additional  one,  that  in  all  large 
bodies  some  members  wanted  to  be  speaking  all  the  time,  and  it 
was  necessary  to  have  rules  to  restrain  them.  With  respect  to  the 
difficulty  of  the  gentleman  from  Sutton,  that  there  was  no  mode 
of  ascertaining  who  was  in  the  majority,  he  said  we  might  rely  on 
the  honor  of  any  member  of  the  Convention. 

Mr.  Blake  of  Boston  was  opposed  to  the  recommitment  because 
he  was  satisfied  with  the  amendment  proposed.  He  said  that  il 
ever  there  were  an  occasion  for  being  governed  by  prescribed  rules 
of  proceeding  to  prevent  debates  from  running  to  an  unnecessary 
length,  it  is  now,  in  so  numerous  an  assembly,  almost  a  council  of 
five  hundred.  From  the  importance  of  the  occasion  every  member 
would  be  disposed  to  be  in  his  place. 


20  MASSACHUSETTS    CONVENTION. 

Mr.  Mattoon  said  that  he  did  not  move  to  recommit,  because  he 
was  averse  to  the  amendment ;  on  the  contrary,  he  approved  of  it ; 
but  he  thought  the  recommitment  would  give  an  opportunity  to 
gentlemen  of  considering  the  subject  and  satisfying  themselves. 

Mr.  Apthorp  of  Boston  spoke   in  favor  of  the  recommitment. 

Mr.  Morton  of  Dorchester  was  opposed  to  the  recommitment 
and  to  the  amendment.  He  said  every  member  should  have  equal 
rights,  and  that  he  would  rather  prohibit  all  reconsideration,  than 
that  a  delegate  from  one  town  should  be  allowed  to  call  for  it, 
while  the  right  was  denied  to  another. 

Mr.  Austin  of  Boston  was  in  favor  of  the  amendment,  but 
thought  it  necessary  to  recommit,  for  the  purpose  of  rendering  the 
rule  more  perfect  in  another  respect.  He  replied  to  the  argument 
of  the  gentleman  who  preceded  him. 

The  question  of  recommitment  was  taken,  and  decided  in  the 
affirmative,  249  to  97. 

Mr.  John  Phillips  of  Boston  moved  to  amend  by  striking  out 
the  rule  which  prohibits  any  one  in  debate  from  speaking  of  a 
member  who  is  present,  by  his  name.  He  thought  that  in  smaller 
bodies  the  rule  was  a  good  one ;  but  in  the  present  assembly  con- 
taining so  many  members  from  a  single  town,  it  was  in  some  in- 
stances impossible  to  designate  an  individual  alluded  to,  in  the 
mode  required  by  the  rule. 

Mr.  Story  of  Salem  said  it  was  not  consistent  with  the  dignity 
of  the  assembly  to  depart  from  the  usage  of  all  deliberative  bodies, 
and  to  permit  individuals  to  be  called  by  name  in  debate.  He 
thought  there  would  be  no  difficulty  in  adhering  to  the  rule. 

Mr.  Pickman  of  Salem  spoke  against  the  amendment. 

Mr.  Sibley  of  Sutton  was  in  favor  of  the  amendment.  He 
thought  the  rule  unnecessary.  Our  rules  would  be  known  abroad, 
and  he  was  averse  to  its  going  across  the  Atlantic  that  we  are  so 
uncivil,  as  to  require  being  trammelled  by  such  rules. 

Mr.  Webster  observed,  that  the  best  argument  in  favor  of  the 
rule  was,  that  the  reasons  offered  against  it,  are  in  contradiction  to 
each  other.  It  was  objected  to  by  the  mover  of  the  amendment, 
that  it  could  not  be  enforced,  and  by  the  gentleman  who  last  spoke, 
that  it  would  enforce  itself. 

Mr.  Sibley  rose  to  explain.  The  motion  to  amend  was  with- 
drawn. 

Mr.  Morton  moved  to  amend  the  rule  regulating  the  taking  of 
yeas  and  nays.  He  moved  to  strike  out  the  number  "fifty,"  re- 
quired for  taking  the  yeas  and  nays,  and  to  insert  "one  hundred." 
He  said  that  much  time  was  wasted  in  a  call  of  the  yeas  and  nays, 
and  that  fifty  was  too  small  a  number  of  members  to  be  entitled  to 
make  the  call.  His  motion  was  adopted — 226  in  favor,  and  137 
against  it. 

Mr.  Qjjincy  moved  to  strike  out  the  rule  for  the  purpose  of  in- 
troducing a  substitute,  the  nature  and  object  of  which  he  explained. 
This  motion  was  carried,  297  voting  in  favor.     He  proposed  a  ride, 


MASSACHUSETTS    CONVENTION.  21 

which  he  modified  on  the  suggestion  of  Mr.  Welles  of  Boston, 
requiring  one  fifth  of  the  members  present  to  support  a  call  for  the 
yeas  and  nays.     This  substitute  was  accepted. 

The  report  as  amended  was  accepted,  with  the  exception  of  the 
rule  recommitted. 

Mr.  Turner  moved  that  a  committee  be  appointed  to  determine 
the  compensation  of  the  members  of  the  Convention,  and  to  make 
out  a  pay-roll.  At  the  suggestion  of  Mr.  Sibley,  Mr.  Turner 
agreed  to  sever  the  motion.  The  first  part  was  then  voted,  and  a 
committee  appointed,  consisting  of  Messrs.  Turner,  Sibley,  Ran- 
toul  of  Beverly,  Draper  of  Brookfield,  and  Prince  of  Newbury- 
port. 

Messrs.  Ellis  of  Dedham,  Sturgis  of  Boston,  and  Shepard  of 
Salem,  were  appointed  a  committee  to  draft  a  pay-roll. 

Mr.  Dana  rose,  and  after  observing  that  the  House  was  now  or- 
ganized, and  that  it  was  necessary  to  proceed  to  the  business  for 
which  the  Convention  was  called,  declared  that  he  felt  embarrassed 
in  proposing  any  course  of  proceeding.  He  said  that  after  forty 
years'  experience  of  the  beneficial  effects  of  the  constitution,  the 
people  had  seen  fit  to  choose  delegates  to  make  a  revision  of  it. 
He  had  not  had  opportunities  for  judging  of  the  sense  of  the  people 
at  large,  but  he  knew  that  it  was  the  opinion  of  those  he  had  been 
with,  particularly  of  his  own  constituents,  that  the  constitution 
should  be  approached  with  great  reverence,  and  that  we  should 
proceed  with  the  greatest  caution.  He  was  much  relieved  from 
his  apprehensions  of  any  evil  consequences,  by  the  appearance  of 
the  assembly,  composed  as  it  was,  of  men  of  so  much  experience ; 
of  so  many  who  had  been  called  to  administer  the  government  in 
the  legislative  and  judiciary  departments. 

He  observed  that  a  revision  must  be  had ;  the  constitution  Avas 
made  in  the  time  of  war  and  soon  after  the  declaration  of  inde- 
pendence, and  some  changes  were  necessary.  He  doubted  his  abil- 
ity to  suggest  the  best  course  of  proceeding. 

He  said  that  the  constitution  must  either  be  re-drafted  or  the 
amendments  be  interwoven  with  it.  For  the  purpose  of  enabling 
the  Convention  to  shape  their  course  of  proceeding,  and  to  draw 
forth  abler  men  than  himself  he  would  submit  the  following  prop- 
osition: That  the  part  of  the  constitution  relating  to  the  Senate 
should  be  so  amended  that  there  should  be  thirty-one  Senators 
chosen  to  act  as  Senators  only,  and  apportioned  in  districts  accord- 
ing to  the  number  of  inhabitants. 

Mr.  Webster  moved  that  the  resolution  be  committed  to  a  com- 
mittee of  the  whole  House  and  be  made  the  order  of  the  day  for 
tomorrow. 

Mr.  Russell  of  Boston  was  desirous  that  this  subject  should  not 
be  discussed  until  the  committee  for  the  arrangement  of  the  seats 
had  made  their  report,  and  that  it  should  be  made  the  order  of  a 
more  distant  day. 


22  MASSACHUSETTS    CONVENTION. 

Mr.  Varnum  of  Dracut  wished  that  a  different  plan  might  be 
pursued  from  that  proposed  by  the  gentleman  from  Groton.  He 
said  we  were  appointed  to  revise  the  constitution,  and  he  thought 
it  our  duty  to  begin  at  the  beginning  of  it  and  go  through  it  in 
course. 

Mr.  Prescott  of  Boston  rose  and  said,  that  he  had  a  motion  to 
make  when  it  should  be  in  order,  which  he  thought  would  meet 
the  views  of  the  gentleman  from  Dracut,  though  not  precisely  sim- 
ilar to  the  one  he  had  suggested.  He  said  he  concurred  with  the 
gentleman  from  Groton  that  the  constitution  should  be  approached 
with  reverence ;  that  it  should  be  touched  with  a  trembling  hand, 
and  he  believed  that  the  Convention  would  proceed  with  the  great- 
est caution.  It  had  stood  the  test  of  forty  years ;  we  had  grown 
up  under  it ;  it  was  interwoven  with  our  habits  and  associations ; 
our  institutions  were  founded  upon  it;  and  no  one  could  predict 
what  would  be  the  consequences  of  any  innovations  in  it.  The 
only  safe  rule  for  our  direction,  should  be,  experience.  Whatever 
alteration  experience  had  demonstrated  to  be  necessary  or  benefi- 
cial, ought  to  be  adopted,  and  no  other.  Wherever  there  is  doubt 
whether  an  alteration  will  be  beneficial,  it  is  our  duty  to  wait  for 
further  light  from  experience.  We  had  just  reason  to  feel  a  degree 
of  pride  that  forty  years  ago,  men  and  statesmen  were  found  to 
frame,  and  the  people  had  virtue  and  intelligence  enough  to  adopt  a 
better  frame  of  government,  than  any  on  earth  before  that  day.  It 
had  served,  in  some  measure,  as  a  model  for  all  that  have  been 
formed  since.  How  great  Avould  be  the  reproach,  if,  after  the  lapse 
of  forty  years,  we  should  make  alterations  to  impair  the  benefits 
derived  from  this  constitution. 

No  change  had  been  wished,  no  Convention  had  been  thought  of, 
until  the  formation  of  a  new  state  from  a  part  of  the  Common- 
wealth. The  people  were  satisfied  with  the  constitution,  and  did 
not  wish  to  avail  themselves  of  the  opportunity  of  revision  in 
1795,  when  it  might  be  done  in  conformity  with  the  constitution 
itself.  Discontent  with  the  government  had  sometimes  shown  it- 
self, but  none  with  the  constitution ;  and  the  revision  now  would 
not  have  been  thought  of,  but  from  the  supposed  necessity  in  con- 
sequence of  the  separation  of  Maine  from  the  Commonwealth. 

He  inferred  this  from  what  he  knew  of  the  opinions  of  the  peo- 
ple, and  from  the  small  number  of  votes  which  were  given  on  the 
proposition  for  a  Convention.  It  may  have  been  expedient  to  take 
the  subject  of  amendment  into  consideration.  We  had  lived  se- 
curely and  happily  under  the  constitution,  but  changes  take  place 
in  the  condition  of  human  affairs ;  defects  creep  into  the  best  insti- 
tutions. 

He  proceeded  to  consider  in  what  manner  the  duty  imposed  upon 
the  Convention  could  be  best  performed.  He  agreed  with  the  gen- 
tleman from  Dracut,  that  we  were  to  revise  the  whole  constitution, 
and  to  report  to  the  people  our  opinion  on  the  whole.  He  thought 
it  would  be  necessary  to  submit  the  subject  to  a  committee.     A 


MASSACHUSETTS    CONVENTION.  23 

committee  of  the  whole,  was  too  numerous  to  discuss  it  advantage- 
ously, and  it  was  indispensable  that  it  should  go  into  the  hands  of  a 
smaller  number.  Shall  it  then  be  submitted  entire  to  one  large 
committee,  or  in  parts  to  several?  There  were  objections  to  the 
first  mode.  A  single  committee  could  embrace  but  a  small  portion 
of  the  intelligence  of  the  House ;  they  would  have  too  much  to  do  ; 
their  attention  would  be  distracted,  and  while  they  were  preparing 
their  report  the  principal  part  of  the  assembly  would  remain  unoc- 
cupied. They  would  not  be  able  to  report  upon  a  part  so  soon  as  a 
committee  whose  attention  was  confined  to  that  part.  He  had 
thought  with  other  gentlemen  with  whom  he  had  conversed  that  it 
could  be  examined  with  greater  despatch  and  clearness  by  appor- 
tioning it  to  several  select  committees.  He  said  that  no  inconve- 
nience could  arise  from  this  course,  as  a  distinct  subject  could  be 
referred  to  each  committee.  He  would  have  the  committees  as 
large  as  could  well  act  on  the  subject.  We  should  thus  have  all 
the  different  parts  revising  at  the  same  time.  Some  of  the  com- 
mittees who  would  have  much  labor  would  report  late,  and  others 
in  a  short  time.  With  these  views  he  had  prepared  some  resolu- 
tions which  he  would  submit.  He  then  proceeded  to  read  the  fol- 
lowing resolves,  accompanied  with  remarks  upon  each : — 

1.  Resolved,  That  so  much  of  the  constitution  of  this  Commonwealth  as  is  con- 
tained in  the  first  part  or  declaration  of  rights,  be  referred  to  a  committee  to  take 

nto  consideration  the  propriety  and  expediency  of  making  any,  and  if  any,  what 
alterations  or  amendments  therein,  and  report  as  soon  as  may  be. 

2.  Resolved,  That  so  much  of  the  constitution  of  this  Commonwealth  as  is  con- 
tained in  the  first  section  of  the  first  chapter  of  the  second  part,  and  respects  the  Gen- 
eral Court,  be  referred  to  a  committee  to  take  into  consideration  the  propriety  and 
expediency  of  making  any,  and  if  any,  what  alterations  or  amendments  therein,  and 
report  thereon  as  soon  as  may  be. 

3.  Resolved,  That  so  much  of  the  constitution  of  this  Commonwealth  as  is  con- 
tained in  the  second  section  of  the  first  chapter  of  the  second  part,  and  respects  the 
Senate ;  and  also  so  much  thereof  as  is  contained  in  the  third  section  of  the  same 
chapter,  and  respects  the  House  of  Representatives,  be  referred  to  a  committee  to 
take  into  consideration  the  propriety  and  expediency  of  making  any,  and  if  any,  what 
alterations  or  amendments  therein,  and  report  thereon  as  soon  as  may  be. 

4.' Resolved,  That  so  much  of  the  constitution  of  this  Commonwealth  as  is  con- 
tained in  the  first  section  of  the  second  chapter  of  the  second  part,  and  respects  the 
Governor,  militia,  &c.  be  referred  to  a  committee  to  take  into  consideration  the  pro- 
priety and  expediency  of  making  any,  and  if  any,  what  alterations  or  amendments 
therein,  and  report  thereon  as  soon  as  may  be. 

5.  Resolved,  That  so  much  of  the  constitution  of  this  Commonwealth  as  is  contained 
in  the  second  section  of  the  second  chapter  of  the  second  part,  and  respects  the  Lieut. 
Governor ;  and  also,  so  much  thereof  as  is  contained  in  the  third  section  of  the  same 
chapter,  and  respects  the  Council  and  the  manner  of  settling  elections  by  tire  Legis- 
lature, be  referred  to  a  committee  to  take  into  consideration  the  propriety  and  expe- 
diency of  making  any,  and  if  any,  what  alterations  or  amendments  therein,  and  report 
thereon  as  soon  as  may  be. 

(J.  Resolved,  That  so  much  of  the  constitution  of  this  Commonwealth  as  is  con- 
tained in  the  fourth  section  of  the  second  chapter  of  the  second  part,  and  respects  the 
Secretary,  Treasurer,  Commissary,  &c.  be  referred  to  a  committee,  to  take  into  con- 
sideration the  propriety  and  expediency  of  making  any,  and  if  any,  what  alterations 
or  amendments  therein,  and  report  thereon  as  soon  as  may  be. 

7.  Resolved,  That  so  much  of  the  constitution  of*this  Commonwealth  as  is  con- 
tained in  the  third  chapter  of  the  second  part,  and  respects  the  Judiciary  power,  be 
referred  to  a  committee  to  take  into  consideration  the  propriety  and   expediency  of 


24  MASSACHUSETTS    CONVENTION. 

making  any,  and  if  any,  what  alterations  or  amendments  therein,  and  report  thereon 
as  soon  as  may  be. 

8.  Resolved,  That  so  much  of  the  constitution  of  this  Commonwealth  as  is  con- 
tained in  the  fourth  chapter  of  the  second  part,  and  respects  delegates  to  Congress, 
be  referred  to  a  committee  to  take  into  consideration  the  propriety  and  expediency 
of  making  any,  and  if  any,  what  alterations  or  amendments  therein,  and  report  thereon 
as  soon  as  may  be. 

9.  Resolved,  That  so  much  of  the  constitution  of  this  Commonwealth  as  is  contained 
in  the  fifth  chapter  of  the  second  part,  and  respects  the  University  at  Cambridge,  and 
the  encouragement  of  literature,  &c.  be  referred  to  a  committee  to  take  into  consid- 
eration the  propriety  and  expediency  of  making  any,  and  if  any,  what  alterations  or 
amendments  therein,  and  report  thereon  as  soon  as  may  be. 

10.  Resolved,  That  so  much  of  the  constitution  of  this  Commonwealth  as  is  con- 
tained in  the  sixth  chapter  of  the  second  part,  and  respects  oaths  and  subscriptions, 
&c,  be  referred  to  a  committee,  to  take  into  consideration  the  propriety  and  expe- 
diency of  making  any,  and  if  any,  what  alterations  or  amendments  therein,  and  report 
thereon  as  soon  as  may  be. 

Upon  reading  each  resolve  he  communicated  the  principal  objects 
embraced  by  it,  and  proposed  that  the  committee  should  be  larger 
or  smaller  according  to  the  importance  and  difficulty  of  the  several 
subjects.  He  said  that  he  would  propose  upon  the  bill  of  rights 
embraced  by  the  first  resolve  a  very  large  committee,  to  consist  per- 
haps of  twenty-one  members.  The  part  of  the  constitution  relating 
to  the  Senate  and  House  of  Representatives,  embraced  in  the  third 
resolve,  he  would  have  committed  to  a  committee  equally  large. 
This  subject,  he  said,  was  of  great  importance,  and  one  on  which 
there  might  be  a  difference  of  opinion.  The  article  relating  to  the 
Senate  was  generally  considered  to  require  amendment.  As  to  the 
House  of  Representatatives  he  did  not  know  that  any  amendment 
would  be  expected.  No  doubt  inconveniences  were  experienced 
from  the  large  number  of  representatives,  but  he  should  be  opposed 
to  any  alteration  unless  it  could  be  made  in  a  manner  which  would 
be  generally  satisfactory.  The  subjects  embraced  by  the  other 
resolves  had  fewer  difficulties  and  might  be  referred  to  smaller  com- 
mittees. 

He  wished  it  to  be  distinctly  understood,  that  he  made  these 
propositions  because  he  thought  it  their  duty  to  act  upon  the  whole 
subject,  not  that  he  expected  or  desired  any  alterations  on  all  the 
articles,  or  on  any  except  such  as  are  necessary. 

Mr.  Dana  then  said  that  as  the  subject  had  been  examined,  and 
fully  reviewed  by  the  distinguished  gentleman  who  had  brought  for- 
ward these  propositions,  whose  views  he  was  happy  to  find  as 
far  as  he  could  understand  them  nearly  coincided  with  his  own, 
withdrew  his  motion, 

Mr.  Prescott  then  laid  his  resolutions  on  the  table  and  they 
were  read  from  the  chair. 

Mr.  Varnum  moved  that  they  should  lie  upon  the  table  until 
tomorrow.  He  said  he  was  afraid  that  if  they  took  the  constitu- 
tion to  pieces  and  dissected  it  in  the  manner  proposed,  they  should 
not  be  able  to  put  it  together  again.  It  was  like  sending  mechanics 
into  the  woods  in  different  directions  to  hew  down  trees  and  fit 
them  there  for  a  building.  He  thought  that  the  whole  should  be 
be  considered  together. 


MASSACHUSETTS    CONVENTION.  25 

It  was  then  ordered  that  the  resolves  lie  on  the  table  till  tomorrow 
and  be  the  order  of  the  day,  and  be  printed  in  the  mean  time  for 
the  use  of  the  members. 

Mr.  Dana,  of  the  committee  for  arranging  the  seats,  reported  that 
the  members,  except  monitors,  should  draw  lots  in  presence  of  the 
Secretary  and  the  messenger.  And  that  members  should  be  at  lib- 
erty to  make  exchanges  within  five  days,  giving  notice  to  the  Sec- 
retary. 

On  motion  of  Mr.  Webster,  ordered,  that  the  oldest  member  of 
the  Boston  delegation  should  give  notice  to  the  Chaplains,  of  the 
vote  passed  in  relation  to  them,  and  request  them  to  perform  the 
duties  of  Chaplains  of  the  Convention. 

Mr.  Q-uincy,  at  the  request  of  the  proprietors  of  the  Boston  Athe- 
naeum, informed  the  members  of  the  Convention  that  their  library 
and  rooms  were  open  for  their  use  whenever  they  should  choose  to 
visit  them. 

Adjourned. 


Friday,  November  17. 

The  members  of  the  Convention  having  drawn  for  places  in  the 
interval  since  the  last  adjournment,  in  pursuance  of  the  order  of 
yesterday,  took  the  seats  thus  designated,  this  morning. 

The  committee  appointed  to  inform  the  Chaplains  of  the  two 
houses  of  the  General  Court  of  the  vote  yesterday  in  relation  to  them, 
having  reported  that  they  accepted  the  appointment  as  Chaplains  of 
the  Convention,  and  the  House  being  called  to  order  by  the  President, 
prayer  was  made  by  the  Rev.  Mr.  Jenks,  Chaplain  of  the  House  of 
Representatives. 

The  journal  of  yesterday's  proceedings  was  read  by  the  Secretary. 

Hon.  John  Adams  of  Q.uincy  rose,  and  observed  that  the  Con- 
vention was  yesterday  informed  that  the  Proprietors  of  the  Boston 
Athenaeum  had  tendered  to  the  members  of  the  Convention  the  use 
of  their  Library  collections.  He  thought  that  such  an  instance  of 
politeness  deserved  a  return  on  the  part  of  the  Convention.  He 
therefore  moved  that  the  thanks  of  the  Convention  be  given  to  the 
Proprietors  of  the  Athenaeum  for  their  liberal  offer. 

A  vote  of  thanks  was  passed  accordingly. 

Col.  Turner,  from  the  committee  to  whom  was  referred  the  sub- 
ject of  compensation  of  members,  made  a  report,  which  report  was 
laid  on  the  table  and  read  as  follows : — 

Ordered,  That  there  be  allowed  and  paid  out  of  the  Treasury  of  this  Commonwealth 
to  each  member  of  the  Convention,  two  dollars  per  day  for  each  day's  attendance  on 
the  Convention,  and  the  like  sum  for  every  ten  miles  travel  from  their  respective 
places  of  abode  to  the  place  of  the  sitting  of  the  Convention. 

And  be  it  further  Ordered,  That  there  be  paid  to  the  President  of  the  Convention 
two  dollars  per  day  for  each  and  every  day's  attendance  over  and  above  his  pay  as  a 
member. 

The  report  was  accepted. 
4 


26  MASSACHUSETTS    CONVENTION. 

The  order  of  the  day  being  called  up, 

Mr.  Slocum  of  Dartmouth. — Mr.  President,  I  feel  myself  very 
incompetent  to  lead  the  way  in  the  discussion  which  is  to  take 
place  on  the  subject  of  the  resolves  (proposed  by  Judge  Prescott,) 
which  have  now  been  read.  When  I  look  around  me  and  see  so 
many  venerable  men  experienced  in  public  affairs,  some  of  whom 
have  had  a  share  in  making  our  constitution,  and  many  have  taken 
a  part  in  the  administration  of  it,  I  feel  the  smalless  of  my  abilities, 
but  I  deem  it  my  duty  to  express  my  sentiments  on  the  resolutions, 
confident  that  what  is  well  intended  will  be  favorably  received.  I 
thought  the  first  question  would  be  whether  we  should  make  any 
amendment  in  the  constitution ;  but  now  we  are  taking  this  for 
granted,  and  parcelling  it  out  in  order  to  make  them.  We  are  leap- 
ing the  stile  before  we  get  to  it.  I  hope  the  report  will  not  prevail ; 
I  do  not  know  that  my  wishes  will  prevail,  but  I  think  it  my  duty 
to  express  them.  I  shall  now  sit  down,  and  hear  what  other  gen- 
tlemen have  to  say,  and  I  shall  be  very  happy  to  be  convinced  by 
their  arguments ;  otherwise  I  shall  remain  opposed  to  these  resolu- 
tions. 

Mr.  Dana  of  Groton  said,  that  as  no  gentleman  rose  to  present 
his  views  to  the  Convention,  he  would  make  a  few  observations. 
He  said  that  the  inquiry  now  presented,  was  whether  the  mode 
proposed  was  the  best  method  of  entering  upon  the  business  of  the 
Convention.  The  old  convention  had  no  land-marks  to  direct  them 
in  the  course  which  they  were  to  pursue ;  but  our  labors  were  of  a 
different  kind.  We  had  a  constitution,  which  was  believed  by 
many  to  be  perfect  already.  It  was  stated  by  the  gentleman  who 
moved  the  resolutions  (Judge  Prescott),  that  the  whole  constitution 
was  to  be  revised  by  us.  This  sentiment  met  with  his  entire  and 
hearty  approbation.  He  approved  of  the  form  in  which  the  subject 
had  been  presented  in  these  resolutions,  because  he  presumed  that 
different  gentlemen  had  come  with  views  to  particular  parts ;  and 
certain  members  would  be  better  masters  of  particular  parts  than 
any  could  be  of  the  whole  entire.  The  several  committees  will 
have  studied  the  parts  referred  to  them,  and  when  their  reports  come 
in,  they  would  be  more  complete  and  satisfactory.  There  would 
besides  be  a  large  body  of  the  members  assembled,  who  could  not 
be  much  employed,  till  the  subjects  had  been  matured  in  the  com- 
mittees. That  mode  which  will  employ  the  greatest  number  was 
the  best.  He  had  not  examined  whether  the  subject  could  be  dif- 
ferently divided,  but  it  was  not  material  in  what  manner  it  was 
divided.  The  forms  are  such,  that  every  member  can  be  assured 
that  his  propositions  will  have  full  consideration  ;  and  he  was  on  the 
whole  well  satisfied  with  the  mode  proposed.  He  was  not  able  to 
conceive  a  mode  better  adapted  than  the  one  presented  by  the  gen- 
tleman from  Boston. 

Mr.  Varnum  of  Dracut.  I  am  very  sorry,  Mr.  President,  to  be 
compelled  to  differ  from  the  gentleman  from  Groton.  Great  for- 
mality has  been  used  in  taking  the  sense  of  the  people  of  this  Com- 


MASSACHUSETTS    CONVENTION.  27 

monwealth,  and  a  large  majority  have  voted  in  favor  of  a  revision 
of  the  constitution.  The  several  towns  have  in  consequence  sent 
their  delegates  to  look  over  the  constitution,  and  see  whether  it 
requires  any,  and  what  amendments.  The  people  have  judged  for 
themselves  that  the  whole  is  to  be  revised ;  but  now  we  are  par- 
celling out  the  constitution,  one  part  to  one  committee,  and  another 
to  another,  before  we  have  determined  that  any  amendment  ought 
to  be  made.  Now  that  we  are  assembled  in  Convention,  it  is  our 
duty  to  inquire  what  we  are  to  do,  and  what  we  may  not  do. 

(The  hon.  gentleman  then  read  the  third  section  of  the  act  providing  for  calling 
the  Convention ;  which  section,  among  other  things,  prescribes  that  the  delegates 
elected,  when  organized,  may  take  into  consideration  the  propriety  and  expediency 
of  making  any,  and  if  any,  what  alterations  and  amendments  in  the  present  Constitu- 
tion of  Government  of  the  Commonwealth.) 

He  proceeded — We  have  met  according  to  the  act,  in  the  State 
House  in  Boston.  So  far  we  have  done  right.  What  further  then 
are  we  to  do  ?  We  are  to  take  into  consideration  whether  the  con- 
stitution requires  any  amendment.  It  appears  to  me  that  we  are 
not  to  touch  a  finger  to  the  sacred  instrument,  under  which  our 
institutions  have  grown  up,  under  which  we  have  so  long  enjoyed 
prosperity  and  happiness,  until  this  question  is  decided.  We  are 
not  to  begin  by  parcelling  it  out  in  the  manner  proposed  by  these 
resolutions.  In  my  opinion,  our  only  proper  way  is  to  read  the 
whole  constitution,  either  in  convention,  or  in  a  committee  of  the 
whole,  and  point  out  those  parts  which  require  amendment,  pro- 
ceeding article  by  article.  The  Convention  is  sent  here  to  consider 
what  will  be  for  the  public  good,  not  only  of  this  generation,  but  of 
thousands  yet  unborn.  What  are  the  objections  to  the  mode  which 
I  am  recommending  ?  That  it  will  waste  time  ?  Instead  of  con- 
suming time,  Mr.  President,  it  will  save  time.  Those  parts  which 
we  pass  over  will  stand  firm,  and  those  only  which  require  amend- 
ment, will  be  left  to  occupy  our  attention ;  but  if  we  send  out  com- 
mittees, their  reports  will  be  discussed  as  much  as  the  whole  con- 
stitution ;  and  will  thus  cause  a  great  deal  of  time  to  be  wasted.  If 
these  resolutions  shall  not  be  adopted,  I  shall  move,  that  the  Con- 
vention resolve  itself  into  a  committee  of  the  whole,  in  order  that  it 
may  take  such  a  course  as  upon  deliberation  shall  be  deemed  expe- 
dient. I  shall  vote  against  the  present  motion,  in  order  to  bring 
forward  the  proposition  I  have  before  suggested ;  and  the  subject 
now  before  the  Convention,  I  esteem  of  such  vital  importance,  that 
I  shall  call  for  the  yeas  and  nays  on  the  question  when  it  shall  be 
taken. 

The  motion  was  then  put,  Avhether  the  question  when  taken 
should  be  by  yeas  and  nays,  and  carried — 139  in  favor — being  more 
than  one  fifth  of  the  members  present. 

Mr.  Blake  of  Boston  rose.  Professing  to  have  little  acquaint-* 
ance  with  the  proceedings  of  legislative  bodies,  he  had  originally 
contemplated  no  course  as  most  appropriate  to  this  occasion..  He 
was,  however,  yesterday  much  pleased  with  the  mode  proposed  by 


28  MASSACHUSETTS    CONVENTION. 

these  resolutions  ;  and,  on  further  reflection,  he  had  been  more  and 
more  satisfied  that  it  was  the  best  possible  course  that  could  be  pur- 
sued. It  was  impossible  to  give  a  construction  to  the  law  by  which 
we  should  not  at  some  time  or  other  examine  every  part  of  the 
venerable  instrument.  What  was  a  more  convenient  time  to  pro- 
ceed to  examine  it,  and  how  could  it  be  better  done,  than  by  taking 
it  up  in  several  parts.  The  gentleman  from  Dracut  had  observed 
that  we  had  no  liberty  to  put  our  finger  upon  a  single  article,  until 
we  had  examined  the  whole  instrument.  He  would  ask,  how  it 
was  possible  to  examine  the  whole  constitution,  without  considering 
it  in  parts  ? 

Mr.  Varnum  rose  to  explain.  His  idea  was,  that  they  had  no 
right  to  parcel  it  out  until  the  Convention  had  decided  that  the 
whole  should  be  the  subject  of  amendment. 

Mr.  Blake  proceeded.  How  could  the  Convention  determine 
whether  the  whole  constitution  should  be  subject  to  amendments, 
without  first  examining  the  parts  of  which  it  is  composed  ?  The 
language  of  the  constitution  was  simple,  and  easily  comprehended 
by  persons  of  moderate  capacity.  Still,  it  embraced  a  variety  of 
important  subjects,  and  they  must  be,  at  some  time  or  other, 
examined  in  all  their  parts.  Can  this  be  done  more  satisfactorily, 
than  by  dividing  the  whole  instrument  among  a  number  of  respect- 
able committees,  leaving  it  to  the  whole  Convention  to  judge  and 
act  upon  their  reports,  and,  afterwards,  upon  the  whole  constitution  ? 
There  was  a  great  variety  of  opinions.  Almost  every  individual 
had  formed  his  particular  project  for  amendment.  Each  one  had 
his  own  ingredients  to  throw  into  the  political  cauldron,  and  it 
might  be  imagined  what  would  be  the  mixture.  He  said  it  was 
their  duty  to  bring  into  exercise  the  greatest  portion  of  intellect 
which  could  be  commanded  in  this  body,  and  it  was  no  compliment 
to  say,  that  it  would  be  of  the  highest  character.  This  could  not 
be  done  in  any  other  manner,  than  by  placing  it  in  the  hands  of 
committees,  judiciously  selected.  He  did  not  think  there  was  any 
force  in  the  suggestion  made  yesterday,  that  this  mode  was  calcu- 
lated to  produce  a  mass  of  disjointed  materials.  If  we  assembled  to 
form  a  new  constitution,  there  might  be  some  aptness  in  the  com- 
parison of  the  gentleman  (Gen.  Varnum)  ;  but  God  forbid  that  any 
of  us  should  entertain  an  idea  that  we  were  to  form  a  new  constitu- 
tion. We  have  the  power  to  examine  the  instrument  committed  to 
us,  to  supply  its  defects.  We  have  a  fabric  already  erected  ;  there 
may  be  defects  in  it.  He  believed  that  such  as  there  were  arose 
rather  from  accidental  circumstances,  than  from  any  inherent  fault. 
He  believed  that  the  manner  which  the  gentleman  from  Dracut  had 
proposed,  would  be  attended  with  great  mischiefs ;  and  that  that 
offered  in  the  resolutions  on  the  table,  was  the  best  that  could  be 
devised. 

Mr.  Hubbard  of  Boston  said,  that  as  they  were  appointed  to 
revise  the  whole  constitution,  he  would  move  to  amend  the  first 
resolution,  so  as  to  include  the  preamble,  together  with  the  Decla- 
ration of  Rights. 


MASSACHUSETTS    CONVENTION.  29 

The  amendment  was  adopted. 

Mr.  Webster  observed,  that  the  appointment  of  committees  was 
no  derogation  from  the  powers  of  the  Convention,  nor  a  transfer  of 
the  trusts  which  the  people  had  reposed  in  them,  to  others.  It  was 
certainly  true,  that  the  Convention  itself  was  bound  to  inquire  into 
the  propriety  and  expediency  of  making  alterations  in  the  constitu- 
tion. But  how  was  it  to  inquire  ?  It  was  a  numerous,  deliberative 
body ;  clearly  resembling,  in  its  organization,  a  numerous  legislative 
body.  It,  therefore,  had  adopted  its  rules  of  proceeding,  in  general, 
from  the  practice  of  legislative  bodies ;  and,  among  others,  the 
common  rules  respecting  the  appointment  of  committees.  He 
would  ask,  therefore,  why  it  might  not  proceed  in  the  important 
inquiries  before  it,  as  other  such  bodies  are  accustomed  to  proceed  ? 
It  had  been  urged,  by  the  honorable  member  from  Dracut,  that  no 
committee  ought  to  be  appointed,  on  any  part  of  the  constitution, 
until  the  Convention  had  come  to  a  conclusion  that  such  part 
needed  amendment.  But  why  might  not  the  Convention  com- 
mence an  inquiry  into  this  very  matter,  —  the  necessity  of  any 
alteration  —  by  a  committee  ?  It  seemed  to  be  treated  in  argu- 
ment, as  if  it  were  a  proposition  to  confide  in  others,  the  authority 
committed  to  our  own  hands.  He  did  not  look  upon  the  propo- 
sition in  that  light.  Committees  are  but  instruments  and  organs  of 
the  body  which  appoints  them.  They  are  but  means,  which  the 
body  uses  to  aid  it,  in  its  inquiries  and  investigations.  The  con- 
stitution of  this  Commonwealth  confers  on  the  General  Court,  and 
on  no  other  body,  authority  to  lay  taxes,  establish  judicatures,  and 
pass  laws.  The  General  Court  cannot  transfer  or  delegate  this 
power ;  and  yet  every  one  knows  that  in  exercising  it,  the  General 
Court  uniformly  acts  through  the  agency  of  committees.  What  tax 
is  laid,  what  judicature  established,  what  law  passed,  without  com- 
mittees first  appointed  to  inquire  into  the  propriety  and  expediency 
of  the  proposed  measure  in  every  case  ?  He  thought  it  a  mere 
question  of  expediency  and  fitness,  whether  the  Convention  should 
proceed  in  its  inquiries,  in  the  first  place,  by  committees,  or  in 
another  course.  He  was  favorable  to  the  appointment  of  commit- 
tees ;  among  other  reasons,  because  he  thought  that  mode  would 
give  greater  security  against  ill-considered  and  hasty  propositions  of 
change.  We  might,  it  was  true,  go  into  committee  of  the  whole 
upon  the  constitution,  in  the  first  instance,  and  go  through  it,  para- 
graph by  paragraph  ;  but  he  thought  it  better  to  follow  the  usual 
forms,  and  to  inquire  by  committees  in  the  first  instance.  Every- 
body knew,  of  course,  that  on  the  report  of  any  committee  being 
made,  any  member  might  oppose  it,  or  propose  to  amend  it,  or  to 
recommit  it ;  or,  he  might  bring  forward  himself  any  amendment  to 
the  constitution  which  the  committee  had  not  brought  forward. 
No  member  would  be  precluded  from  an  opportunity  of  submitting 
any  proposition  to  the  Convention.  At  the  same  time,  it  might  be 
confidently  hoped,  that  the  reports  of  respectable  committees  might 
contain  useful  suggestions  and  reasons  on  the  subjects  reported  on 


30  MASSACHUSETTS    CONVENTION. 

by  them,  and  might  produce  an  effect  on  the  judgment  and  discre- 
tion of  members,  with  respect  to  the  propriety  of  proposing  altera- 
tions. It  was  in  this  way,  as  he  thought,  that  the  proceeding  by 
way  of  committees,  while  it  left  an  entire  liberty  to  every  member, 
to  bring  forward  his  propositions,  might  yet  have  some  tendency  to 
produce  a  salutary  caution  in  regard  to  the  propriety  of  submitting 
such  propositions.  This  course  seemed  to  him,  on  the  whole,  to  be 
expedient,  and  he  thought  it  quite  clear,  at  least,  that  from  the  duty 
imposed  upon  the  Convention  by  the  law,  there  was  no  impropriety 
in  their  adopting  it,  if  they  judged  it  the  most  suitable  manner  of 
commencing  their  important  inquiries. 

The  question  was  then  taken  by  yeas  and  nays,  on  the  adoption 
of  the  first  resolution,  and  carried  in  the  affirmative.  Yeas  377, 
nays  90. 

It  was  then  moved  that  the  question  be  taken  on  the  rest  of  the 
resolutions  together.     Agreed  to. 

The  question  on  the  acceptance  of  the  other  nine  resolutions  was 
then  taken,  and  decided  in  the  affirmative,  without  a  division. 

On  successive  motions,  it  was  ordered  that  the  committee,  to 
whom  should  be  referred  the  part  of  the  constitution  embraced  in 
the  first  resolution,  should  consist  of  twenty-one  members.  The 
committee  under  the  2d  resolution,  of  fifteen  members ;  the  3d,  of 
twenty-nine ;  the  4th,  of  fifteen ;  the  5th,  of  twenty-one ;  the  6th, 
of  fifteen  ;  the  7th,  of  fifteen ;  the  8th,  of  five  ;  the  9th,  of  twenty- 
one  ;  and  the  tenth,  of  twenty-one. 

Mr.  Child s  of  Pittsfield  said  he  hoped  it  would  not  be  indelicate, 
or  be  thought  to  show  any  want  of  respect  to  the  chair,  if  he  should 
move  that  the  committee  on  the  first  resolution  should  be  chosen 
by  ballot.  He  had  no  doubt  that  the  President  would  act  with  the 
strictest  impartiality,  but  he  thought  it  would  be  impossible  for  any 
single  man  to  have  such  a  knowledge  of  all  the  members  as  to  be 
able  to  appoint  a  committee  on  this  important  subject  which  should 
represent  the  interests  and  feelings  of  all  the  different  parts  of  the 
Commonwealth. 

Mr.  Webster  spoke  on  the  impracticability  of  the  measure  pro- 
posed. He  said  it  would  be  a  great  waste  of  time  to  choose  all  the 
committees,  one  consisting  of  twenty-one,  another  of  twenty-nine 
members  ;  and  the  others  of  a  large  number  of  members.  All  the 
ballots  that  would  be  necessary,  could  not  be  gone  through  with  in 
a  week.  To  state  the  proposition,  was  enough  to  show  it  to  be 
impracticable.  It  was  stated  by  the  mover  that  the  presiding  officer 
could  not  have  the  requisite  information.  But  his  proposition  ren- 
dered it  necessary  that  every  member  should  have  the  requisite 
information.  When  they  were  nominated  from  the  chair,  the  House 
would  act  upon  each  one,  and  either  confirm  or  reject  it.  The 
appointments  would  be  entirely  within  the  power  of  the  House. 
This  would  be  a  sufficient  check,  if  any  were  necessary,  upon  the 
presiding  officer,  acting  as  he  would  under  the  responsibility  belong- 
ing to  his  station. 


MASSACHUSETTS    CONVENTION.  31 

Judge  Story  of  Salem  said  that  the  explanation  which  had  just 
been  given  by  the  gentleman  from  Boston,  showed  very  forcibly 
that  there  could  be  no  advantage  in  choosing  the  committee  in  the 
mode  proposed  in  the  motion.     The  inconvenience  of  this  mode 
had  been  strongly  pointed  out.     Yet  if  he  had  any  apprehensions 
that  the  interests,  feelings,  and  opinions  of  every  member  would  not 
be  as  fairly  represented,  by  the  usual  mode  of  nomination,  he  would 
be  willing  to  go  through  the  labor  of  balloting  for  a  whole  week,  if 
it  were  necessary.     But  for  himself  he  had  not  the  means  of  know- 
ing what  gentlemen  were  best  qualified  to  serve  on  these  commit- 
tees.    Perhaps  nineteen  in  twenty,  of  those  who  ought  to  be  ap- 
pointed, were  wholly  unknown  to  him.     Many  of  them  he   had 
never  seen,  and  probably  he  was  in  this  respect  in  the  same  situa- 
tion with  ninety-nine  out  of  a  hundred  in  the  Convention.     The 
propriety  of  appointing  one  man  depended  on  the  question  who  was 
to  be  his  associate.     It  would  be  necessary  to  select  persons  from 
different  parts  of  the  State,  and  persons  in  different  situations,  and 
supposed  to  entertain  different  opinions  on  the  subjects  referred  to 
their  consideration.     Each  member  would  vote,  without  knowing 
who  would  be  voted  for  by  others,  and  must  act  according  to  his 
own  opinion,  which  of  course  could  not  be  expected  to  prevail  with 
respect  to  all.     He  thought  that  besides  the  inconveniences  with 
Avhich  this  method  would  be  attended,  it  was  calculated  to  produce 
the  very  evil  the  mover  proposed  to  guard  against.     But,  said  he, 
when  I  consider  the  character  of  the  gentleman  from  whom,  by  the 
rules  of  the  House,  the  nomination  will  proceed,  his  station  in  the 
Commonwealth,  his  station  here,  with  all  the  responsibility  that  be- 
longs to  it,  we  have  a  pledge  which  it  is  impossible  should  ever  be 
violated,  that  no  private  motive  should  mingle  with  considerations 
of  duty  in  the  selection  of  the  committee.    The  eyes  of  every  mem- 
ber of  the  Convention  are  upon  him,  and  it  would  be  impossible,  if 
he  were  disposed,  and  that  is  not  for  a  moment  to  be  imagined,  to 
swerve  from  the  line  of  strict  impartiality.     In  the  character  of  the 
presiding  officer,  we  have  a  pledge  that  the  feelings  and  interests  of 
all  will  be  consulted.     He  will  make  the  most  careful  examination, 
and  act  upon  the  best  information  which  gentlemen  can  give  him. 
Even  if  it  be  possible,  that  from  inadvertence  or  any  other  cause, 
there  should  be  any  improper  nomination,  the  check  belonging  to 
this  body  is  not  to  be  forgotten.     It  is  complete  in  all  its  parts.     We 
can  negative  any  nomination,  or  can  add  to  the  committee  if  it  is 
not  satisfactory  to  the  House.    We  are  not  bound  to  accept,  and  can 
make  any  amendments  to  the  reports  which  they  shall  make.     The 
Convention  is  composed  of  so  much  talent  and  character,  that  it  is 
impossible  to  smuggle  anything  through  the  House.     Every  report 
must  be  deliberated  upon  and  adopted  only  upon  conviction  of  its 
propriety.     He  had  these  reasons  for  thinking  that  the  gentleman's 
proposition  was  calculated  to  defeat  the  object  he  had  in  view.     In 
the  nomination,  different  men  should  be  selected  for  different  ob- 
jects.    Some  members  had  great  experience  in  certain  parts  of  the 


32  MASSACHUSETTS    CONVENTION. 

duty  which  would  be  required,  and  none  in  others.  It  was  not  in 
his  power — perhaps  it  was  in  the  power  of  few  individuals  in  the 
House — to  judge  who  were  qualified  to  serve  most  acceptably  on  the 
different  committees. 

The  motion  was  decided  in  the  negative,  without  a  division  ;  few 
members  voting  in  favor  of  it. 

The  President  said  that  he  should  require  a  little  delay,  and  that 
he  would  make  the  nomination  tomorrow  morning. 

Mr.  Fisher  of  Westborough  moved  that  when  the  House  ad- 
journed, it  should  adjourn  to  nine  o'clock  in  the  morning  instead  of 
the  hour  now  fixed. 

Mr.  Dearborn  of  Roxbury  said  he  thought  that  ten  o'clock 
would  be  most  convenient  to  the  generality  of  the  members,  and 
particularly  to  such  as  lived  in  some  of  the  neighboring  towns. 
Another  member  observed  that  committees  would  want  time  in  the 
morning,  and  that  ten  o'clock  was  quite  early  enough.  The  ques- 
tion was  then  taken  for  altering  the  hour  to  nine  o'clock,  and  was 
determined  in  the  negative,  271  to  127. 

Mr.  Beach  of  Gloucester  moved  for  a  reconsideration  of  the 
vote  establishing  the  compensation  of  the  members  at  two  dollars 
per  day,  for  the  purpose  of  fixing  it  at  one  dollar  per  day. 

Mr.  Dana  moved  that  this  subject  be  assigned  for  tomorrow  at  11 
o'clock.  Negatived.  Mr.  Beach's  motion  was  then  put  and  nega- 
tived, the  mover  and  one  other  member  voting  in  the  affirmative. 
The  House  then  adjourned. 


Saturday,  November  18. 

The  Convention  being  called  to  order,  the  journal  of  yesterday 
was  read. 

The  President  then  informed  the  House  that  he  was  ready  to 
nominate  the  several  committees  on  the  Resolutions  passed  yester- 
day. The  nominations  were  confirmed  by  a  single  vote  upon  each 
committee. 

The  following  gentlemen  compose  the  several  committees,  viz.* 

1st  Rksolve — Messrs.  Bliss  of  Springfield;  Varnum  of  Dracut;  Baldwin  of  Bos- 
ton ;  Heard  of  Ipswich  ;  Wingate  of  Haverhill ;  Hoar  of  Concord ;  Sibley  of  Sut- 
ton ;  Estabrook  of  Athol ;  Hinckley  of  Northampton  ;  Blake  of  Boston ;  Fowler  of 
Westfield;  Mason  of  Northfield ;  Childs  of  Pittsfield ;  Woodbridge  of  Stockbridge  ; 
Storrs  of  Braintree ;  Endicott  of  Dedham ;  Allyne  of  Duxbury ;  Turner  of  Scituate ; 
Morton  of  Freetown  ;  Leach  of  Easton ;  Freeman  of  Sandwich. 

2d  Resolve — Messrs.  Dana  of  Groton ;  Starkweather  of  Worthington  ;  Keyes 
of  Concord;  Fiske  of  Weston;  Willard  of  Fitchburg;  S.  Porter  of  Hadley;  Hoyt 
of  Deerfield;  Trask  of  Brimfield;  Hazard  of  Hancock;  Whitton  of  Lee;.  Green- 
leaf  of  Quincy ;  Weston  of  Middleborough ;  Godfrey  of  Taunton ;  Cobb  of  Brew- 
ster ;  Hussey  of  Nantucket. 

3d  Resolve — Messrs.  Prescott  of  Boston;  L.  Lincoln  of  Worcester  ;  Saltonstall 
of  Salem ;  Pearce  of  Gloucester ;  Lawrence  of  Groton ;  D.  Webster  of  Boston ; 
Knowles  of  Charlestown ;  Russell  of  Mendon ;  Lyman  of  Northampton ;  Story  of 

*  (These  committees  were  somewhat  modified  at  the  session  of  the  20lh.) 


MASSACHUSETTS    CONVENTION.  33 

Salem ;  Smith  of  Hatfield ;  Freeman  of  Boston ;  Alvord  of  Greenfield ;  Dwight  of 
Springfield  ;  Hyde  of  Lenox  ;  Stowell  of  Peru ;  Dearborn  of  Roxbury  ;  Sullivan  of 
Brookline;  Hedge  of  Plymouth;  Spooner  of  Fairhaven;  Hodges  of  Taunton; 
Reed  of  Yarmouth ;  Sullivan  of  Boston ;  Rantoul  of  Beverly ;  Blood  of  Sterling ; 
Locke  of  Billerica;  Foote  of  Southwick;  Nye  of  Sandwich;  Newell  of  Attlebor- 
ough. 

4th  Resolve — Messrs.  Varnum  of  Dracut ;  Mattoon  of  Amherst ;  Sullivan  of 
Boston;  Dearborn  of  Roxbury;  Bartlett  of  Haverhill ;  Pickman  of  Salem;  Spurr 
of  Charlton ;  Willis  of  Pittsfield ;  Fay  of  Cambridge ;  Howard  of  Bridgewater ; 
Russell  of  Boston ;  Fearing  of  Hingham ;  Doane  of  Yarmouth ;  Lincoln  of  Taun- 
ton ;  Abbott  of  Westford. 

5th  Resolve — Messrs.  Pickman  of  Salem;  Apthorp  of  Boston;  S.  A.  Welles  of 
Boston ;  Bartlett  of  Newburyport ;  White  of  Salem ;  Whitman  of  West  Cambridge ; 
Flint  of  Reading;  Taft  of  Uxbridge;  Bangs  of  Worcester;  Lawrence  of  Leomin- 
ster; Hale  of  Westhampton ;  Hunt  of  Northampton  ;  Hamdton  of  Palmer;  Smith 
of  Sunderland ;  Hill  of  West  Stockbridge ;  Ellis  of  Dedham  ;  Richardson  of  Hing- 
ham; N.  M.  Davis  of  Plymouth;  Mitchell  of  Bridgewater;  J.  A.  Parker  of  New 
Bedford ;  Crocker  of  Barnstable. 

6th  Resolve — Messrs.  Ward  of  Boston;  Bannister  of  Newburyport;  Parrot  of 
Gloucester;  Wade  of  Ipswich ;  Josiah  Little  of  Newbury;  Sanger  of  Sherburne; 
Fisher  of  Lancaster;  Thurbur  of  Mendon ;  Dickenson  of  Belchertown ;  Morris  of 
Springfield;  Bassett  of  Ashfield;  Dewey  of  Sheffield;  Draper  of  Roxbury;  Rus- 
sell of  New  Bedford ;  Draper  of  Brookfield. 

7th  Resolve — Messrs.  Story  of  Salem ;  J.  Phillips  of  Boston  ;  Morton  of  Dor- 
chester ;  Cummings  of  Salem ;  L.  Lincoln  of  Worcester ;  Andrews  of  Newbury- 
port; Holmes  of  Rochester;  Willis  of  Pittsfield;  Austin  of  Charlestown  ;  Leland  of 
Roxbury ;  Kent  of  West  Springfield ;  Shaw  of  Boston ;  Marston  of  Barnstable ; 
Austin  of  Boston ;  Bartlett  of  Medford. 

8th  Resolve — Messrs.  Welles  of  Boston  ;  Nichols  of  South  Reading ;  Gardner  of 
Dorchester ;  Picket  of  Otis ;  Dean  of  Taunton. 

9th  Resolve — Messrs.  Q,uincy  of  Boston ;  Fay  of  Cambridge ;  Saunders  of 
Medfield;  Austin  of  Charlestown;  Kendall  of  Leominster;  Tuckerman  of  Chelsea; 
Bailey  of  Pelham;  Thomas  of  Plymouth ;  Hubbard  of  Middleton ;  Sullivan  of 
Brookline ;  Ware  of  Boston  ;  Boylston  of  Princeton ;  Smith  of  Milton ;  Saunder- 
son  of  Whately ;  Hooper  of  Marblehead ;  Savage  of  Boston ;  Locke  of  Ashby ; 
Freeman  of  Sandwich ;  Noyes  of  Newburyport ;  Stebbins  of  Granville ;  Adams  of 
Framingham. 

10th  Resolve — Messrs.  D.  Webster  and  Prince  of  Boston;  Williams  of  Bev- 
erly;  Foster  of  Littleton ;  Parker  of  Charlestown  ;  Seaver  of  Roxbury;  A.Lincoln 
of  Worcester ;  Leonard  of  Sturbridge  ;  Sampson  of  Harvard  ;  King  of  Salem ; 
Parris  of  Marblehead;  Shepley  of  Fitchburg;  Hubbard  of  Boston;  Fiske  of 
Weston ;  Dean  of  Boston ;  Hull  of  Sandisfield ;  Baylies  of  Wellington ;  Jethro 
Mitchell  of  Nantucket;  Mack  of  Middlefield ;  S.  A.  Welles  of  Boston;  Walker  of 
Templeton. 

Mr.  Dana  of  Groton  moved  that  the  Secretary  be  ordered  to  fur- 
nish each  of  the  members  of  the  Convention  daily  during  the  ses- 
sion with  two  newspapers  such  as  each  member  should  choose.  He 
observed  that  it  was  usual  for  members  of  deliberative  bodies  to  be 
furnished  with  newspapers.  In  the  present  instance  it  would  tend 
not  only  to  their  own  instruction  and  gratification,  but  would  enable 
them  to  furnish  their  constituents  at  a  distance  with  a  full  account 
of  their  proceedings  here,  by  transmitting  the  journals  of  the  day 
which  contained  a  regular  report  of  their  doings.  He  concluded  by 
offering  a  resolution. 

Mr.  Austin  of  Boston  hoped  that  if  the  resolution  was  adopted 

there  would  be  an  addition  made  to  it,  requiring  that  they  should 

be  read  out  of  the  House  and  not  by  members  in  their  seats.     He 

said  it  had  been  a  pleasant  sight  to  observe  the  members  of  the 

5 


34  MASSACHUSETTS    CONVENTION. 

House  attentively  engaged  in  the  business  for  which  they  were  con- 
vened. He  should  be  extremely  sorry  to  see  the  example  which 
had  been  set  departed  from  by  the  introduction  of  the  daily  journals. 
He  said  that  the  members  had  not  the  power  of  franking  to  enable 
them  to  send  papers  to  a  distance  free  of  expense,  and  instead  of 
being  of  any  benefit  to  their  constituents,  that  they  would  remain 
as  waste  paper  on  the  table  of  the  members. 

Mr.  Dana  replied,  that  the  gentleman  from  Boston,  living  in  the 
capital  and  always  near  the  sources  of  information,  might  have  a 
different  feeling  from  those  who  had  come  there  from  remote  parts 
of  the  State.  He  thought  it  would  be  a  great  convenience  to  be 
furnished  with  this  means  of  informing  their  constituents  of  their 
course  of  proceedings  here.  On  the  ground  of  its  interference  with 
the  duties  of  the  House,  he  thought  that  no  rule  would  be  necessary 
to  govern  the  conduct  of  members.  A  sense  of  decorum  would  be 
a  sufficient  restraint.  It  would  be  a  convenience  to  be  furnished 
the  means  which  the  papers  afford  of  reviewing  every  morning  the 
doings  of  the  preceding  day.  The  expense  would  be  small  and  he 
would  suggest  that  the  papers  should  be  delivered  to  the  members 
at  their  respective  lodgings. 

Mr.  Pickman  of  Salem  was  opposed  to  the  resolution  because 
each  member  might  supply  himself  at  a  trifling  expense,  and  he 
thought  it  unnecessary  that  the  House  should  take  any  order  on  the 
subject.  . 

Mr.  Bliss  of  Springfield  said  he  hoped  the  motion  would  pre- 
vail with  an  amendment,  that  the  members  should  be  furnished 
with  but  one  paper  daily  instead  of  two,  and  that  the  motion  should 
extend  only  to  newspapers  printed  in  Boston.  He  said  that  it 
would  be  convenient  for  the  members  to  refer  to  the  papers  for  the 
proceedings  of  the  House — to  know  who  were  on  committees,  &c. 
That  he  thought  this  a  sufficient  ground  for  the  motion,  and  that 
no  other  reason -would  justify  their  incurring  this  public  expense. 

Mr.  Dana  consented  to  the  amendment  proposed  by  the  gentle- 
man from  Springfield. 

Mr.  Hoyt  of  Deerfield  proposed  that  the  order  should  relate  back 
to  the  beginning  of  the  session. 

Mr.  Tillinghast  of  Wrentham  said  he  had  no  objection  to  the 
proposition  of  the  gentleman  who  spoke  last,  if  it  could  be  carried 
into  effect ;  but  he  was  apprehensive  that  the  printers  would  not 
have  newspapers  on  hand  of  the  past  days  of  the  session  sufficient  to 
furnish  the  members. 

Mr.  Dwight  of  Springfield  moved  that  the  subject  in  debate  be 
assigned  for  Monday  at  11  o'clock. 

Mr.  Saltonstall  of  Salem  hoped  that  it  would  not  be  assigned, 
and  that  the  motion  of  the  gentleman  from  Groton  would  not  pass 
m  any  shape.  He  said  the  members  had  better  be  attending  to  what 
was  going  on  before  them  in  the  House.  That  every  one  who  had 
frequented  the  two  houses  of  our  Legislature  must  have  witnessed 
the  inconveniences  arising  from  newspapers  being  furnished  to  the 


MASSACHUSETTS    CONTENTION.  '45 

members.  It  was  an  unpleasant  sight  he  observed,  to  see  legisla- 
tors reading  advertisements  and  the  news  of  the  day,  to  the  neglect 
of  the  duties  they  were  chosen  to  perform.  He  said  it  would  look 
odd  to  make  a  rule  to  prohibit  members  from  reading  newspapers. 
He  thought  the  members  might  furnish  themselves  with  papers  if 
they  wanted  them,  and  he  hoped  the  motion  would  not  prevail. 

Mr.  John  Welles  of  Boston  was  sorry  to  differ  from  the  gentle- 
man from  Salem.  He  thought  that  members  would  not  be  disposed 
to  violate  the  rules  of  propriety.  He  said  it  was  of  great  importance 
that  the  proceedings  of  the  Convention  should  be  published,  to  en- 
able the  members  to  give  information  to  their  constituents ;  which 
he  thought  could  not  be  done  in  a  better  or  more  easy  mode. 

Mr.  Bond  of  Boston  moved  that  the  subject  be  committed,  in  or- 
der that  the  committee  might  consider  the  expediency  of  substitut- 
ing for  newspapers  the  volume  which  he  understood  was  preparing, 
containing  the  proceedings  of  the  Convention.  He  observed  that 
most  of  our  towns  had  Social  Libraries  in  which  the  book  might  be 
usefully  deposited,  for  the  convenience  of  every  man,  who  would 
not  otherwise  have  the  means  of  information. 

Mr.  Kne eland  of  Andover  hoped  the  motion  to  furnish  newspa- 
pers would  not  prevail.  He  said  the  members  might  read  them  at 
their  lodgings,  without  any  expense. 

Mr.  Apthorp  of  Boston  thought  it  would  be  proper  that  the  mem- 
bers should  be  furnished  with  the  papers  for  their  own  information. 

Mr.  Webster  said  that  it  was  a  standing  rule  of  all  the  legislative 
bodies  that  he  had  any  acquaintance  with,  that  no  member  should 
be  employed  in  reading  in  his  place  either  newspapers  or  any  printed 
paper  except  the  printed  journal  of  the  house  or  some  other  paper 
printed  by  order  of  the  house,  and  he  should  consider  it  the  duty  of 
any  one  who  saw  this  rule  infringed,  to  call  to  order  the  member 
who  violated  it. 

Mr.  Dana  was  opposed  to  the  commitment  and  to  a  postpone- 
ment, for  reasons  which  he  stated.  The  motion  to  commit  was  put 
and  decided  in  the  negative. 

Mr.  Qjjincy  of  Boston  said  he  thought  that  it  was  an  act  of  comity 
due  from  gentlemen  residing  here  who  were  already  provided  with 
the  daily  papers,  to  furnish  others  with  the  same  privilege.  He  was 
in  favor  of  the  resolution.  The  question  was  taken  and  decided  in 
the  affirmative  by  a  large  majority. 

Mr.  Shaw  of  Boston,  from  the  committee  to  whom  was  committed 
the  rule  of  the  House  on  the  subject  of  reconsideration  of  questions, 
reported  as  a  substitute  for  the  article  in  the  original  report,  the  fol- 
lowing rule  : 

No  motion  for  the  reconsideration  of  any  vote  shall  be  sustained,  unless  made  on 
the  day  on  which  such  vote  passes  and  a  return  of  the  Convention  be  then  made  and 
entered  on  the  journal,  when  the  question  was  not  taken  by  yeas  and  nays ;  every 
such  motion  shall  lie  on  the  table  one  day  before  it  shall  be  taken  up  for  considera- 
tion, and  shall  not  be  taken  up,  unless  as  many  members  are  present  in  convention 
as  were  present  when  such  vote  passed ;  and  not  more  than  one  motion  for  the  recon- 
sideration of  any  one  question,  shall  be  sustained. 


36  MASSACHUSETTS    CONVENTION. 

Mr.  Dana  moved  to  strike  out  the  clause  that  required  the  same 
number  of  members  to  be  present  when  the  motion  for  reconsidera- 
tion was  sustained  as  were  present  on  passing  the  original  vote.  He 
thought  there  should  be  some  regulation  on  the  subject  of  reconsid- 
eration, but  this  was  too  strict.  He  said  that  if  gentlemen  would 
recur  to  the  journal  of  the  convention  that  framed  the  constitution 
of  the  United  States,  an  assembly  composed  of  members  of  great 
experience  and  intelligence,  they  would  find  that  in  the  course  of 
their  proceedings,  propositions  were  adopted  and  rejected,  reinstated 
and  again  rejected,  and  that  they  exercised  the  right  of  reconsidera- 
tion with  the  greatest  freedom.  If  such  men  required  such  an  in- 
dulgence, we  should  not  be  able  to  dispense  with  it.  He  thought 
the  rest  of  the  rule  would  furnish  a  sufficient  guard  against  abuse, 
without  a  second  return  of  the  House  to  know  if  as  many  members 
were  present  as  there  were  on  passing  the  measure  proposed  to  be 
reconsidered. 

Mr.  Sibley  of  Sutton  thought  it  would  be  impossible  ever  to  re- 
consider a  motion  if  this  rule  prevailed.  The  House  was  now  very 
numerous — gentlemen  would  be  from  inevitable  accidents  called 
home,  and  the  members  of  the  House  regularly  decreasing.  It  would 
also  be  in  the  power  of  persons  opposed  to  reconsideration  to  keep 
out  of  the  House,  and  in  that  way  to  gain  their  object.  He  thought 
that  notice  only  was  necessary,  and  that  the  amendment  should  pre- 
vail. 

Mr.  Apthorp  of  Boston  liked  the  order  as  it  was  reported.  He 
thought  the  objection  arose  from  not  adverting  to  the  nature  of  a  re- 
consideration, which  was  a  motion  to  do  away  what  had  been  already 
done.  It  was  reasonable  that  when  anything  had  been  done  by 
any  number  of  members,  an  equal  number  should  be  required  to  do 
it  away. 

Mr.  Shaw  hoped  that  the  amendment  proposed  by  the  gentleman 
from  Groton,  would  not  prevail,  because  it  would  wholly  alter  the 
character  and  operation  of  the  rule.  He  was  desirous  of  explaining, 
shortly,  the  course  of  reasoning  which  had  induced  the  committee 
to  recommend  the  rule,  as  it  was  reported.  They  had  not  submit- 
ted this  rule,  because  they  thought  it  to  be  absolutely  the  best  and 
most  conformable  to  sound  principles,  but  because  it  had  long  been 
in  operation  in  the  most  numerous  legislative  body  in  this  Common- 
wealth ;  therefore  they  considered  it  one,  with  the  use  and  practice 
of  which  most  of  the  members  of  this  Convention  were  from  expe- 
rience familiarly  conversant.  Had  they  been  required  now  for  the 
first  time,  to  propose  a  rule  on  this  subject,  they  would  probably 
have  preferred  the  substitute,  offered  by  the  gentleman  from  Spring- 
field, when  this  subject  was  before  the  Convention  upon  a  former 
occasion,  limiting  the  right  of  moving  for  the  consideration  of  any 
vote,  to  a  member  who  had  voted  with  the  majority  upon  the  ques- 
tion proposed  to  be  reconsidered,  and  which  was  understood  to  be 
conformable  to  the  practice  in  the  House  of  Representatives  of  the 
United  States.     But  considering  that  some  advantages  in  practice 


MASSACHUSETTS    CONVENTION.  37 

would  be  derived  from  adhering  to  the  rules  which  have  for  many- 
years  prevailed  in  this  Commonwealth,  the  committee  in  the  first 
instance  had  adopted  in  terms,  that  of  the  House  of  Representatives 
of  our  own  State  in  preference  to  a  new  one,  not  so  well  known. 

But  it  having  appeared  from  the  short  debate  on  the  subject,  which 
took  place  when  this  subject  was  before  under  discussion,  that  the 
proposed  rule  was  ambiguous  in  its  terms,  that  different  presiding 
officers  had  put  different  constructions  upon  it,  and  that  gentlemen 
of  the  longest  experience  in  the  Legislature  differed  in  their  views  of 
its  true  import,  and  as  the  subject  had  been  recommitted  for  the 
purpose  of  further  reconsideration  and  amendment,  the  committee 
had  now  reported  the  same  rule  in  substance,  but  expressed  in  terms 
which  in  their  apprehension  would  divest  it  of  all  ambiguity  and 
make  its  import  at  least  clear  and  intelligible.  He  proceeded  to  state 
that  the  rule  itself  was  founded  on  the  great  and  incontrovertible 
principle  that  in  all  deliberative  assemblies  of  persons  possessing 
equal  rights,  the  voice  of  a  majority,  solemnly  and  deliberately  ex- 
pressed, must  control  that  of  a  minority.  If  the  same  number  who 
have  carried  a  measure,  or  a  larger  number,  is  desirous  of  revising 
their  decision,  whilst  their  acts  are  yet  in  their  power,  in  conse- 
quence of  having  received  new  information  or  changed  their  views, 
they  have  an  unquestionable  right  so  to  do  ;  but  it  has  never  yet 
been  the  practice  of  the  Legislature  of  this  Commonwealth,  to  permit 
a  smaller  number  to  reverse  the  acts  and  votes  of  a  larger.  The 
clause  therefore,  which  the  gentleman  proposes  to  strike  out,  is  de- 
signed to  secure  the  operation  of  these  principles,  to  guard  against 
surprise,  and  to  secure  to  the  Convention  the  means  of  ascertaining 
in  each  particular  case,  that  the  body  called  upon  to  reconsider,  is 
at  least  as  numerous,  as  that  which  has  deliberately  adopted  the 
measure,  or  passed  the  vote  in  question.  Mr.  S.  said  this  amend- 
ment had  been  urged,  on  the  ground  that  the  rule  as  reported,  had 
a  tendency  to  narrow  the  range  of  discussion ;  this,  however,  he 
believed  was  a  misrepresentation  of  the  design  and  operation  of  the 
rule.  Its  tendency  was  rather  to  encourage  a  free  discussion  of 
every  important  question  at  the  most  proper  time,  before  a  vote  was 
taken.  Besides,  take  the  rules  together,  as  they  have  already  been 
adopted,  and  ample  provision  is  made  for  the  most  full  and  un- 
limited discussion  of  every  question,  which  any  gentleman  may 
think  proper  to  bring  under  the  consideration  of  the  Convention. 
Every  important  question  would  first  be  considered  in  committee 
of  the  whole,  when  the  most  liberal  discussion  would  be  had  and 
the  sense  of  the  whole  body  fully  expressed,  and  again  the  mea- 
sure, whatever  it  might  be,  would  be  deliberately  revised  in  Con- 
vention. Should  their  deliberations  result  in  a  resolution  proposing 
alteration  in  the  constitution,  such  resolution  must  be  read  on  two 
several  days,  at  each  of  which  readings,  the  whole  subject  would  be 
open  to  debate  ;  by  using  the  term  reconsideration  therefore,  in  its 
liberal  and  proper  sense,  every  important  question  must,  in  the  re- 
gular and  orderly  course  of  proceeding  which  the   Convention  had 


38  MASSACHUSETTS    CONVENTION. 

prescribed  to  itself,  be  solemnly  and  deliberately  reconsidered. 
Nothing,  therefore,  could  be  more  groundless  than  the  apprehension 
that  this  House  would  be  deprived  of  the  means  of  considering  again 
every  question  that  any  member  might  think  proper  to  submit. 

It  had  been  suggested  as  one  reason,  why  the  rule  as  it  stands 
would  be  impracticable,  that  the  ranks  of  this  body  would  shortly 
be  thinned  by  the  absence  of  members ;  he  trusted,  however,  that 
whatever  might  be  the  case  in  ordinary  legislative  assemblies,  no 
consideration  short  of  imperious  necessity  would  induce  a  gentle- 
man to  withdraw  the  aid  of  his  voice  and  counsel  from  this  con- 
vention until  the  very  interesting  and  important  trust  confided  to 
them  by  their  constituents  had  been  fully  and  defuiitively  dis- 
charged. Believing  that  the  clause  in  question  was  an  essential 
part  of  the  rule,  that  the  rule  itself,  thus  guarded,  would  promote 
the  orderly  course  of  proceedings,  and  prevent  surprise,  he  hoped  it 
would  not  be  stricken  out. 

Mr.  Holmes  of  Rochester  thought  the  argument  of  the  gentle- 
man from  Sutton,  was  irrefutable.  He  acknowledged  that  he  felt  the 
weight  of  the  observations  of  the  gentleman  from  Boston,  last  up, 
but  he  thought  that  the  order  might  be  so  amended  as  to  meet  the 
views  of  both  gentlemen — by  merely  requiring  that  there  should 
be  as  large  a  number  to  vote  for  reconsideration  as  voted  in  the 
majority  on  the  original  question. 

Mr.  Varnum  observed,  that  the  remarks  of  the  gentleman  from 
Sutton,  were  conclusive,  and  he  called  upon  gentlemen  to  produce' 
a  single  instance  of  a  rule  similar  to  the  one  reported,  in  any  legis- 
lative assembly.  He  said  it  was  an  absurd  rule,  and  what  would 
be  the  consequences  of  it,  he  asked  ?  Suppose  all  the  members  of 
the  Convention  to  be  present,  a  vote  passes  by  a  majority  of  a  single 
member ;  we  are  not  assured  of  the  health  of  the  members — we 
must  expect  accidents — it  is  probable  that  there  will  be  a  progress- 
ive decrease  in  the  number  of  members  who  will  attend — if  one 
member  is  called  away,  you  cannot  reconsider,  because  there  will 
not  be  as  many  present  as  there  were  when  the  original  question 
was  taken.  Many  votes  pass  upon  the  spur  of  the  occasion — per- 
fection does  not  belong  to  men,  and  it  always  has  been  and  will  be 
the  case,  that  members  may  change  their  minds ;  but  if  this  rule 
passes,  there  will  be  no  remedy.  Suppose  an  endeared  friend 
should  die — suppose  a  man  should  fall  dead  in  the  street — these 
would  surely  be  reasonable  causes  for  absence.  Can  the  Convention 
supply  vacancies? — the  law  makes  no  provision  for  this.  Suppose 
a  measure  passed  which  is  a  favorite  with  any  single  member — if 
he  has  not  honor  enough  to  come  into  the  House,  he  has  it  in  his 
power  to  defeat  all  reconsideration.  The  gentleman  said  the  rule 
was  an  improper  one,  and  an  arbitrary  one.  He  said  that  if  notice 
were  given  of  a  member's  intention  to  move  a  reconsideration,  and 
this  notice  lay  on  the  table  one  day,  it  was  sufficient.  That  nothing 
but  imperious  necessity  could  justify  the  absence  of  any  member  of 
that  body. 


MASSACHUSETTS    CONVENTION.  39 

Mr.  S.  A.  Welles  of  Boston  observed,  that  this  was  the  most 
salutary  rule  which  had  been  reported  by  the  committee.  He  said 
it  would  prevent  any  measure  which  had  been  adopted  by  a  major- 
ity, from  being  reversed  by  a  minority — that  its  influence  would  be 
particularly  felt  by  the  members  from  the  country.  It  may  happen 
that  many  members  may  have  retired  to  their  homes,  feeling  secure 
that  what  has  been  transacted  in  the  House,  with  their  approbation, 
would  stand  firm  ;  but  if  this  rule  is  rejected,  they  will  feel  no  se- 
curity. The  measure  may  be  reversed,  before  they  can  return.  He 
apprehended  that  the  gentleman  from  Dracut  was  mistaken  in 
respect  to  the  antiquity  of  this  rule  ;  that  if  he  would  take  the 
trouble  to  look  over  the  proceedings  of  our  old  house  of  assembly, 
he  would  find  a  similar  regulation,  in  a  letter  from  the  assembly,  in 
1768,  to  Lord  Hillsborough.  He  thought  this  rule  would  be  found 
to  be  a  Avise  rule,  and  one  from  which  no  inconvenience  would  be 
experienced,  and  he  therefore  hoped  it  would  be  adopted. 

Mr.  Leland  of  Roxbury  said  that  other  instances  besides  those 
mentioned  by  the  gentleman  who  preceded  him,  might  be  cited, 
where  similar  rules  had  prevailed.  The  committee  had  taken  into 
the  article  the  very  principle  that  prevailed  in  the  house  of  repre- 
sentatives of  this  Commonwealth,  to  confirm  which,  he  read  the 
rule,  and  affirmed  that  it  required  the  same  number  should  be 
present  when  the  vote  for  reconsideration  was  taken,  as  were  pres- 
ent on  the  main  question.  There  was  a  little  ambiguity,  which 
the  committee  had  removed  in  their  report.  He  thought  the  rule 
reasonable.  There  should  be  a  period  when  debate  should  come  to 
an  end.  He  said  he  would  not  reurge  the  reasons  of  the  gentleman 
from  Boston,  but  thought  he  was  not  heard  in  all  parts  of  the  House. 
He  recapitulated  the  course  of  proceedings  in  the  House — first,  con- 
sideration in  the  committee — second,  the  same  proposition  as  dis- 
cussed in  the  House — members  may  speak  twice  as  a  matter  of 
right,  and  oftener  by  obtaining  leave — the  question  is  taken  on  two 
separate  days — on  each  reading,  any  member  may  go  over  the  argu- 
ment again  on  the  same  question.  He  supported  the  rule  more  at 
large,  and  opposed  striking  out. 

Mr.  Willard  of  Fitchburg  was  in  favor  of  the  amendment  of 
the  member  from  Groton.  He  said  sufficient  notice  of  a  motion  to 
reconsider,  would  always  be  given  to  those  who  were  opposed  to  a 
reconsideration.  The  gentleman  from  Boston,  (Mr.  S.  A.  Welles,) 
had  expressed  great  solicitude  for  the  country  members,  lest  advan- 
tage should  be  taken  of  their  absence.  He  was  from  the  country, 
he  said,  and  for  himself  he  felt  no  such  apprehension. 

Mr.  Martin  of  Marblehead  thought  members  were  making  the 
subject  in  discussion  of  more  importance  than  it  deserved.  He  said 
they  had  been  appointing  numerous  committees  to  consider  of  the 
expediency  of  different  parts  of  the  constitution.  He  would  sup- 
pose that  some  amendments  were  adopted — that  they  were  very 
excellent  amendments — still,  he  said,  the  votes  by  which  they  were 
adopted,  would  not  be  beyond  the  power  of  the  House,  if  the  rule 


40  MASSACHUSETTS    CONVENTION. 

reported  should  be  accepted.  That  some  member  would  only  have 
to  move  that  the  rules  of  the  House  be  dispensed  with,  and  the  votes 
would  be  open  to  reconsideration.  He  said  he  should  vote  to 
strike  out. 

Mr.  Morton  thought  that  the  part  comprehended  in  the  motion 
,  of  the  gentleman  from  Groton,  was  an  objectionable  feature  in  the 
rule  reported  by  the  committee,  and  he  hoped  the  motion  to  strike 
it  out  would  prevail.  Every  member,  he  said,  had  equal  rights, 
and  no  rule  should  be  adopted  which  would  give  one  member 
greater  rights  and  privileges  than  another.  If  a  member,  in  proper 
time,  moves  for  a  reconsideration,  and  takes  care  to  have  as  many 
members  present  as  there  were  when  the  original  vote  was  passed, 
he  does  all  than  can  reasonably  be  required  of  him.  He  stands 
rectus  in  curia.  He  has  a  right  to  say,  I  have  made  my  motion 
regularly  and"  fairly,  and  am  entitled  to  have  it  considered — who, 
he  asked,  has  power  to  make  any  rule  to  prevent  its  being  consid- 
ered ?  If  any  member  should  be  absent  by  accident,  this  rule,  he 
said,  would  deprive  him  of  all  power  of  remedying,  what  should 
appear  to  him  to  be  an  inconsiderate  measure.  He  said  there  was 
no  precedent  to  sanction  this  rule. 

Mr.  Webster  observed,  that  as  there  was  much. opposition  to  the 
motion,  and  as  it  was  not  of  great  importance  to  act  upon  it  imme- 
diately, he  would  venture  to  propose  to  have  it  laid  on  the  table. 

Mr.  Dana  spoke  in  favor  of  laying  the  report  on  the  table. 

Mr.  Foster  was  opposed  to  laying  the  report  on  the  table,  be- 
cause, if  there  was  no  rule,  there  could  be  no  reconsideration.  He 
thought  that  if  the  rule  was  not  adopted,  the  other  rules  could  not 
be  printed.  He  wished  that  the  rule  might  be  settled,  and  that  all 
the  rules  might  be  printed. 

Mr.  Bond  said  he  differed  from  his  honorable  colleague,  (Mr. 
Webster,)  and  was  opposed  to  the  report's  being  laid  on  the  table. 
The  same  difficulties  and  discussion,  he  said,  would  recur  when  the 
subject  came  up  again.  He  thought  that  the  opposition  to  the  rule 
as  reported,  arose  from  mistaking  the  meaning  of  the  rule,  and  from 
supposing,  what  would  not  prove  to  be  true,  that  it  would  be  im- 
possible to  obtain  a  reconsideration  of  any  question  under  it.  He 
said  that  the  objection,  that  all  the  delegates  present  at  a  vote, 
would  not  be  present  when  the  motion  to  reconsider  was  agitated, 
was  more  specious  than  solid.  The  rule,  he  said,  did  not  require 
the  whole  number,  that  is,  the  same  persons,  who  voted,  to  be  pres- 
ent at  the  motion  to  reconsider,  but  only  as  many  as  voted.  The 
rule  of  the  house  of  representatives,  he  apprehended,  had  been 
generally  construed  as  this  one  is  expressed.  He  hoped  that  the 
rule  as  reported,  would  be  adopted. 

Mr.  Savage  of  Boston  thought  that  very  many  members  felt 
great  relief  upon  the  motion  being  made  by  his  colleague,  to  lay 
the  report  on  the  table.  He  thought  that  sufficient  provision  was 
made  in  the  other  rules  to  guard  against  surprise.  The  only  objec- 
tion to  omitting  the  rule,  he  thought,  was.  that  when  a  motion  was 


MASSACHUSETTS    CONVENTION.  41 

made  for  reconsideration,  it  might  be  objected  that  the  motion  was 
out  of  order.  He  thought  that  no  difficulty  would  arise  of  this  kind, 
for  if  the  House  perceived  the  reason  for  reconsideration,  they  would 
readily  accede  to  the  motion.  If  there  was  no  rule,  there  would  be 
no  prohibition  of  reconsideration. 

Mr.  Slocum  followed,  but  we  were  not  fortunate  enough  to  hear 
his  remarks. 

Mr.  Hubbard  of  Boston  said  if  he  understood  the  remarks  of  the 
gentleman  from  Boston,  he  thought  it  was  not  necessary  we  should 
have  any  rule  on  the  subject  in  discussion.  He  (Mr.  Hubbard) 
thought  there  were  many  occasions,  on  which  it  was  proper  for  the 
House  to  have  a  reconsideration.  He  thought  that  the  House  ought 
to  have  this  right — but  that  they  should  qualify  this  right,  and  it 
was  his  opinion  that  the  rule  proposed,  regulated  it  in  a  proper  and 
convenient  mode.  He  was  opposed  to  having  the  report  lie  on  the 
table.  He  thought  the  present  time  as  good  as  any  to  determine  on 
the  question.  There  was  nothing  else  of  consequence  to  occupy 
the  Convention  now,  as  the  important  business  for  which  they  were 
assembled,  had  been  portioned  out  to  committees.  He  therefore 
wished  that  the  subject  might  not  be  deferred. 

Mr.  Webster  withdrew  the  motion  to  lay  the  report  on  the  table. 

Mr.  Baldwin  of  Boston  thought  that  the  report  could  be  so 
amended  as  to  remove  the  objections  which  had  been  made  to  it. 
He  suggested  a  modification  of  it,  but  did  not  make  any  motion  to 
amend. 

Mr.  Dana  was  pleased  with  the  disposition  shown  by  members 
not  to  protract  debate  unreasonably.  But  he  thought  there  was 
one  operation  of  this  rule  which  had  escaped  the  observation  of  the 
committee.  He  argued  that  the  Convention,  being  formed  of  a 
single  body,  wanted  the  checks  which  were  furnished  in  most  leg- 
islative bodies,  by  being  composed  of  two  houses,  and  subject  to 
the  negative  of  the  executive  authority,  and  consequently  required 
more  ample  provision  for  securing  the  right  of  repeated  deliberation. 
He  examined  in  detail,  what  must  be  the  operation  of  the  rule,  and 
contended  that  contingencies,  which  he  stated,  might  render  the 
rule  extremely  injurious  in  its  operation.  He  replied  to  the  sugges- 
tion that  the  rule  would  secure  the  attendance  of  members.  He 
thought  that  no  additional  inducements  were  necessary  to  secure 
attendance  when  it  was  possible,  but  there  would  be  cases  in  which 
it  would  be  impossible.  A  vote  might  pass  in  a  full  house,  by  a 
single  vote.  Members  might  change  their  opinions,  yet  it  would 
be  in  the  power  of  a  single  member,  by  retiring,  to  prevent  the  re- 
consideration of  a  favorite  measure.  It  would  put  it  in  the  power 
of  a  single  member  to  oppose  the  will  of  the  whole  House.  He 
thought  that  the  Convention  would  not  agree  to  a  rule  which  might 
have  so  injurious  an  operation. 

Mr.  Bliss  thought  the  striking  out  the  part  proposed  would  ren- 
der the  rule  absurd.     He  was  desirous,  he  said,  to  save  time  as  much 
as  possible,  and  was  in  hopes  that  the  Convention  might  soon  have 
6 


42  MASSACHUSETTS    CONVENTION. 

two  sessions  a  day.  But  this  rule  so  altered  would  lead  to  a  need- 
less expense  of  time.  There  was  nothing  in  it  to  prevent  a  recon- 
sideration on  the  same  day  that  the  vote  is  passed,  and  as  many 
reconsiderations  as  any  member  should  move  for.  He  said  that 
without  that  part,  it  did  not  go  to  the  object  of  the  rule.  ■  It  ought 
to  require  that  notice  of  the  motion  to  reconsider  should  be  given 
at  the  time  the  vote  passes ;  otherwise  the  clause  requiring  a  return 
of  the  House  should  be  struck  out  as  superfluous.  He  was  satisfied 
he  said  with  the  rule  as  amended  by  the  committee.  It  had  obviated 
the  objection  he  made  to  the  one  originally  reported ;  though  he 
thought  the  substitute  proposed  by  himself  on  a  preceding  day, 
would  have  answered  equally  well.  He  said  that  as  he  was  not 
much  conversant  with  the  modes  of  proceeding  in  our  legislative 
bodies,  he  did  not  know  the  practical  effect  of  the  rule  as  it  at  first 
stood.  That  now  the  ambiguity  was  removed,  and  he  was  satisfied  ; 
and  he  thought  that  substantial  reasons  had  been  urged  against  the 
alteration  proposed. 

Mr.  Pickman  said  that  if  the  amendment  was  adopted,  a  further 
amendment  would  be  rendered  indispensable.  Without  it,  it  would 
be  put  in  the  power  of  a  member  of  a  minority,  on  a  vote  passed 
by  a  large  majority  in  a  full  house,  to  give  notice  of  a  motion  for 
reconsideration,  and  to  call  it  up  at  any  subsequent  time  in  a  thin 
house,  and  to  carry  it  in  opposition  to  the  sense  of  a  large  majority 
of  the  house. 

Mr.  Welles  read  a  passage  from  the  Massachusetts  State  papers, 
proving  the  existence  of  the  rule  he  had  alluded  to,  in  the  Massa- 
chusetts Provincial  Assembly,  in  the  year  1768,  by  which  no  ques- 
tion for  reconsideration  should  be  put,  unless  when  there  were  as 
many  members  present,  as  when  the  original  question  was  taken. 

Mr.  Varnum  said  that  when  he  spoke  of  the  rule  reported  by  the 
committee  as  being  different  from  any  that  had  prevailed  in  any 
other  legislative  body,  he  referred  to  the  legislatures  of  the  several 
United  States,  and  he  did  not  suppose  that  any  gentleman  in  looking 
for  an  authority  on  this  occasion  would  search  the  records  of  a 
British  colony. 

The  question  for  striking  out  on  Mr.  Dana's  motion,  was  taken 
and  decided  in  the  affirmative,  195  to  193. 

Mr.  Morton  moved  to  amend  by  striking  out  the  whole  rule  and 
inserting  one  which  should  allow  of  reconsideration  when  as  many 
members  voted  for  it  as  were  in  favor  of  the  original  measure,  pro- 
vided they  were  a  majority  of  the  members  voting  on  the  question 
of  reconsideration, — notice  to  be  given,  and  one  reconsideration  of 
the  same  question  only  to  be  allowed. 

Mr.  Webster  thought,  that  of  all  the  various  propositions  which 
the  occasion  had  elicited,  that  now  before  the  Convention  was  the 
most  extraordinary.  It  appeared  to  him  to  be,  in  many  respects, 
objectionable.  In  the  first  place,  what  is  meant  by  requiring  as 
many  votes  to  reconsider  a  motion,  as  were  in  favor  of  the  original 
measure  ? — Suppose  the    questions  were    on    the    adoption    of  an 


MASSACHUSETTS    CONVENTION.  43 

amendment.  A  very  small  number  for  example,  five,  might  be  in 
favor  of  it,  and  all  the  rest  against  it.  Yet,  in  this  case,  by  the 
proposed  rule,  the  vote  was  necessarily  to  be  reconsidered.  The 
honorable  gentleman  had  drawn  his  motion  as  if  affirmative  votes 
only  could  be  reconsidered,  and  has  made  no  provision  at  all  for  the 
reconsideration  of  negative  votes.  Again,  according  to  this  pro- 
vision, a  motion  for  reconsideration  might  be  made  and  discussed 
for  a  week  ;  then  put  to  the  vote,  and  although  carried  affirmatively 
by  a  majority,  have  no  effect,  and  be  declared  a  nullity,  because 
the  majority  was  not  large  enough.  He  begged  leave  to  dissent. 
entirely  and  most  widely  from  all  such  modes  of  proceeding.  All 
rules  respecting  reconsideration  were  intended  and  adopted  for  the 
purpose  of  ascertaining,  under  what  circumstances,  and  by  whom, 
a  motion  for  reconsideration  might  be  brought  forward.  But  when 
once  brought  forward,  it  must,  of  course,  like  all  other  motions,  be 
decided  by  a  majority.  Nobody,  he  believed,  ever  before  heard  of 
a  rule,  by  which  a  motion  to  reconsider,  when  once  regularly  made, 
was  not  to  be  decided  like  other  motions.  It  might  well  be  doubted 
whether  the  Convention  could  prescribe  any  such  rules  ;  rules  by 
which  anything  more  than  a  majority  of  members  should  be  re- 
quired for  the  decision  of  any  question  regularly  before  it.  Mr. 
Webster  proceeded  to  say,  that  it  was  with  great  unwillingness  that 
he  troubled  the  Convention  again  on  this  occasion,  but  he  would 
indulge  the  hope,  that  after  the  failure  of  so  many  attempts  to  qual- 
ify the  right  of  moving  to  reconsider,  in  any  manner  acceptable  to 
the  Convention,  gentlemen  would  be  more  inclined  to  adopt  the 
usual  limitations, — the  restriction  of  the  right  to  some  member  voting 
with  the  majority.  No  other  qualification  was  so  simple  or  so  easily 
understood  and  none  better  secured  the  right  against  abuse.  He 
would  presume  even  to  take  the  sense  of  the  House  again  on  this 
subject,  if  the  present  proposition  should  be  rejected,  and  renew  the 
motion  made  the  other  day  by  the  honorable  member  from  Spring- 
field, (Mr.  Bliss,)  a  motion  which  went  to  adopt  the  rule,  in  the 
form  he  had  mentioned.  He  confessed,  that  he  disliked  the  rule, 
as  reported  by  the  committee  in  all  its  forms.  Instead  of  preventing 
surprise,  it  facilitated  it.  It  might  easily  be  shown  that  if  anything 
unfair  were  intended,  such  a  rule  gave  great  facility  to  carry  it  into 
effect.  For  example  ;  it  was  supposed  to  be  an  advantage  to  move 
to  reconsider ;  but  such  motion  Avas  to  be  limited,  in  point  of  time. 
Suppose,  then,  a  member,  favorable  to  what  had  been  decided,  "yet 
apprehending  a  motion  to  reconsider,  should  make  such  motion 
himself  and  give  notice  that  he  should  call  it  up  two  days  hence — 
of  course  no  other  motion  to  reconsider  could  be  made  ;  yet,  at  the 
expiration  of  two  days,  this  motion  might  be  withdrawn  by  the 
mover,  and  it  would  then  be  too  late  for  any  other  member  to  make 
a  similar  motion.  Again,  a  member  favorable  to  any  decision,  ap- 
prehensive of  a  vote  to  reconsider,  may  presently  make  such  a  motion 
himself,  and  immediately  by  the  same  members  obtain  an  inevitable 
confirmation   of  a  favorite  vote,  for  it  could  be  reconsidered  but 


44  MASSACHUSETTS    CONVENTION. 

once.  These  were  among  the  modes,  in  which  all  these  imaginary 
securities  against  surprise,  might  be  turned  to  the  very  purposes  of 
surprise.  The  practice  of  reconsidering  votes,  in  a  legislative  assem- 
bly, was  of  recent  origin.  The  general  rule  has  been,  and  still  is, 
that  no  proposition  can  be  brought  forward  directly  contradicting 
what  has  been  done  at  the  same  session.  Mr.  Jefferson  calls  the 
whole  practice  an  anomalous  proceeding ;  and  a  proceeding  tending 
to  produce  effects  by  surprise.  It  was  indeed  a  practice,  by  which 
the  House  put  more  power  into  the  hands  of  every  individual  mem- 
ber than  it  could  itself  exercise  by  the  greatest  majority.  The 
House  bound  itself  by  rules  not  to  give  a  second  reading,  or  take  a 
second  important  vote  on  the  same  measure,  the  same  day.  Hence 
propositions  were  so  be  read  on  different  days,  "before  they  passed. 
But  by  this  practice  it  was  in  the  power  of  any  individual  member 
to  do  that  which  the  whole  House  could  not  do ;  and  to  bring  on  a 
second  discussion,  and  a  second  vote  the  same  day  or  the  same  hour. 
All  deliberative  bodies  establish  stages  of  proceeding  ;  and  every 
measure  may  be  debated  at  each  stage.  This  was  useful  and  sal- 
utary ;  and  it  was  even  useful  that  these  stages  should  be  frequent. 
He  hardly  cared  how  frequent.  If  three  readings  be  not  enough 
let  there  be  four  as  is  the  practice  in  some  bodies.  But  let  all  the 
members  equally  understand  how  many  readings  there  are  to  be, 
and  then  all  will  have  an  equal  opportunity  of  being  present  and 
of  opposing  or  supporting — the  other  course  leads  to  great  inequality 
and  undue  advantage  on  one  side ;  because  it  puts  it  in  the  power 
of  an  individual  to  choose  his  own  time  and  opportunity.  Mr.  W. 
said  he  would  appeal  to  gentlemen  who  had  sat  in  assemblies  where 
this  right  of  moving  to  reconsider  was  under  little  or  no  restraint,- 
whether  they  had  not  found  that  in  fact  it  produced  no  real  or  ef- 
fectual reconsideration  whatever — whether  it  is  not  true,  that  mea- 
sures were  suffered  to  pass  along  through  all  the  regular  stages 
without  discussion,  and  never  be  debated,  nor  in  reality  considered 
at  all,  till  on  the  motion  to  reconsider.  If  it  were  so,  then  in  truth 
the  practice  was  hostile  to  any  real  revision  or  review  of  its  judg- 
ments by  the  House.  Indeed  it  had  been  said,  in  the  course  of  this 
discussion,  that  the  right  to  reconsider  was  useful,  because  it  tended 
to  save  time  ;  inasmuch  as  gentlemen  would  forbear  debate  through 
all  the  regular  stages  of  a  bill,  in  the  hope  that  a  majority  would  be 
found  favorable  to  their  views,  without  discussion — and  still  relying, 
if  this  hope  failed,  in  the  power  of  discussing  the  subject  on  a  mo- 
tion to  reconsider.  Now  he  would,  ask,  what  was  this,  but  limiting 
all  real  and  useful  discussion  or  consideration  to  one  single  stage  and 
one  single  time  ?  Would  it  not  be  much  better  that  the  reasons  for 
measures  should  be  assigned  when  the  measures  were  introduced  ; 
and  that  opposition,  if  any  were  intended,  should  be  made  in  the 
regular  stages  of  the  proceeding  ?  Gentlemen  had  spoken  on  this 
subject  as  if  any  limit  on  the  right  of  moving  to  reconsider  wer*e  a 
restraint  upon  the  freedom  of  speech  and  debate.  He  confessed  he 
should  have  had  more  confidence  in  the  opinions  and  sentiments  of 


MASSACHUSETTS    CONVENTION.  45 

gentlemen  in  this  particular,  if  their  vigilance  had  been  roused  by 
another  rule  which  had  been  adopted.  He  alluded  to  the  rule  al- 
lowing the  previous  question  to  be  called,  at  the  pleasure  of  a  ma- 
jority. If  there  were  anything  curtailing  a  just  freedom  of  debate 
it  was  this — as  it  had  sometimes  been  used,  it  Avas  certainly  an 
instrument  of  injustice.  Yet,  not  even  the  honorable  gentleman 
from  Dorchester,  who  spoke  so  ably  and  with  so  much  animation 
on  this  occasion,  had  opposed  this  rule.  For  his  own  part,  he  pre- 
sumed it  would  never  be  executed  in  this  body — or  not  except  in 
extreme  cases  ;  or  otherwise  he  should  himself  have  hoped  to  see  it 
stricken  out.  The  previous  question  was  said  to  have  been  invented 
by  a  man  who  once  resided  not  far  from  the  spot  in  which  he  was 
speaking,  Sir  Harry  Vane.  When  it  was  put  in  practice  to  silence 
the  whigs  in  England,  not  far  from  the  period  of  their  revolution, 
one  of  them,  Sir  Robert  Howard,  said,  it  teas  like  the  image  of  its 
author,  a  perpetual  disturbance.  Mr.  W.  said  he  should  conclude 
by  repeating  that  if  the  amendment  before  the  House  did  not  pre- 
vail he  should  move  for  the  adoption  of  the  rule,  as  it  was  practised 
in  Congress  and  other  legislative  bodies,  that  is  to  say,  that  every 
motion  for  reconsideration  should  be  moved  by  some  one  who  voted 
in  the  majority — this  might  not  be,  indeed  it  was  not  an  absolute,  an 
infallible  security  against  surprise  and  other  evil  consequences  some- 
times flowing  from  the  practice.  But  it  was  the  best  security,  and  was 
familiar  to  many  gentlemen,  and  to  the  practice  of  many  assemblies. 
Having  submitted  this  motion,  he  should  leave  it  to  the  Convention 
to  dispose  of  it  as  it  thought  fit ;  not  intending  to  trouble  them  with 
any  further  observations  on  the  subject. 

The  question  was  taken  on  Mr.  Morton's  amendment,  and  deter- 
mined in  the  negative  without  a  division. 

Mr.  Webster  then  moved,  by  way  of  amendment  and  in  place  of 
the  rule  recommended  by  the  committee,  the  following,  viz : — 

When  a  motion  has  been  made  and  carried,  in  the  affirmative  or  negative,  it  shall 
be  in  order  for  any  member  of  the  majority  to  move  for  the  reconsideration  thereof, 
on  the  same  or  succeeding  day. 

Mr.  Morton  said  the  gentleman  was  not  in  order.  (Overruled.) 
He  proceeded  to  say  that  he  was  opposed  to  the  gentleman's  motion 
for  several  reasons.  He  said  the  rule  of  Congress  was  contrary  to 
our  habits ;  that  Congress,  no  doubt,  had  adopted  it  with  very  good 
intentions ;  it  might  be  found  convenient  in  that  body.  But  in  this 
Commonwealth  we  had  not  adopted  it,  and  we  had  felt  no  incon- 
venience from  not  adopting  it.  If  one  member  could  move  for  a 
reconsideration,  why  not  every  member  ?  What  equity  or  justice 
was  there  in  one  member's  having  rights  and  privileges  which  all 
the  members  had  not?  If  a  motion  were  a  proper  one,  the  members 
of  the  minority  should  have  the  power  to  offer  it,  as  well  as  those 
of  the  majority.  This  was  an  invidious  distinction.  He  said  we 
were  accustomed  to  the  rule  of  our  own  Legislature.  We  were 
restrained  by  it,  but  it  operated  equally  on  all  the  members.  He 
said  he  should  not  object  to  the  rule  of  Congress  as  a  rule  for  the 


46  MASSACHUSETTS    CONVENTION. 

Legislature,  where  the  impolitic  acts  of  one  session  might  be 
remedied  at  the  next.  On  the  contrary  the  proceedings  of  this  Con- 
vention would  not  be  open  to  revision,  and  were  to  affect  not  only 
the  present  generation  but  posterity.  It  was  important  therefore 
that  every  member  should  have  the  power  of  moving  for  a  recon- 
sideration, and  by  the  rule  proposed  by  himself,  the  vote  on  the 
reconsideration  would  be  as  solemn  as  the  original  one.  The  mover 
of  a  reconsideration  would  be  restricted  by  the  rules  requiring  as 
many  members  to  be  present  when  he  makes  his  motion,  and  in 
favor  of  it,  as  there  were  in  the  majority  when  the  vote  passed. 
This  certainly  was  fair.  All  the  members  would  be  notified  of  his 
intention — what  could  be  fairer  ?  He  repeated  that  he  was  opposed 
to  one  member's  having  privileges  from  which  others  were  debarred. 

Mr.  Varnum  said,  he  felt  very  happy  that  the  gentleman  from 
Boston,  (Mr.  Webster)  had  proposed  to  substitute  the  rule  practised 
in  Congress.  He  said  it  was  simple,  easily  understood  and  con- 
venient. That  he  had  had  many  years'  experience  of  its  operation, 
and  had  never  heard  any  member  of  Congress  make  any  objection 
to  the  rule.  That  the  honor  of  gentlemen  stating  that  they  had 
voted  in  the  majority  had  always  been  relied  on,  and  that  no  incon- 
venience had  resulted  from  such  reliance. 

Mr.  Qjjincy  corroborated  the  statements  made  by  the  member 
from  Dracut.  He  said  he  had  himself  observed  the  favorable  opera- 
tion of  the  rule  for  eight  years  in  Congress,  without  having  experi- 
enced the  least  inconvenience,  though  he  was  the  whole  of  that 
time  in  a  minority.  He  expressed  his  satisfaction  at  the  remarks 
coming  from  a  gentleman  of  so  long  experience  as  a  member  and 
presiding  officer  in  the  national  legislature.  He  said  it  would  be- 
one  of  the  most  fortunate  circumstances  attending  this  Convention, 
if  it  should  be  the  means  of  introducing  this  rule  among  us.  He 
hoped  it  would  be  adopted  in  our  Legislature,  where,  on  important 
occasions,  advantage  was  too  apt  to  be  taken  under  the  rule  now  in 
use. 

Mr.  Morton  rose  and  stated  a  case.  Suppose  there  are  four 
hundred  and  one  members  present  when  a  vote  is  passed ;  two  hun- 
dred and  one  voting  in  the  majority — sixty  afterwards  come  in, 
whose  sentiments  coincide  with  the  minority — if  this  rule  prevails, 
what  is  to  be  done?  How  is  the  question  to  be  opened?  He 
repeated  that  it  was  very  important  in  this  Convention,  that  questions 
should  be  open  to  reconsideration. 

Mr.  Foster  of  Littleton  said  he  felt  very  diffident  of  himself, 
when  he  saw  around  him  so  many  men  of  talents  and  experience  in 
public  affairs,  whose  judgment  must  be  venerable,  and  whose  judg- 
ment he  did  venerate.  He  proceeded  to  say,  that  this  rule  was 
brought  forward  by  gentlemen  as  the  only  thing  which  would 
answer  the  purpose  intended.  He  said  it  might  answer  very  well 
in  Congress,  where  they  have  the  power,  at  a  future  session,  to  cor- 
rect any  inconsiderate  measure  of  a  preceding  session.  But  it  was 
not  so  with  this  Convention,  which  can  have  no  future  session.     It 


MASSACHUSETTS    CONVENTION,  47 

did  not,  therefore,  follow  of  course,  that  a  rule  suitable  for  Congress, 
or  for  any  legislative  body,  would  be  applicable  to  the  Convention. 
He  went  on  to  state  a  case  which  happened  in  the  Legislature  ten 
or  twelve  years  ago,  and  which  came  within  his  own  knowledge. 
An  important  measure,  he  said,  was  brought  forward  and  advocated 
by  one  person  only.  When  the  question  was  taken,  it  was  deter- 
mined in  the  negative  by  the  vote  of  the  Speaker.  A  reconsidera- 
tion was  moved  for  and  advocated  by  the  same  person  only.  The 
Speaker's  vote  again  determined  the  question  in  the  negative.  The 
measure  was  brought  forward  a  third  time,  and  carried  by  about  two 
thirds,  and  has  been  since  very  well  approved  of.  But  this  rule 
will  put  a  stop  to  all  such  advantages  of  revision.  He  concluded 
by  saying,  that  the  rule  was  inapplicable  to  a  body  like  the  Con- 
vention, where  a  thing  once  done,  was  done  forever. 

Mr.  Varnum  begged  pardon  of  the  House  for  rising  so  often ;  the 
gentleman  from  Littleton,  he  said,  had  mistaken  his  object  alto- 
gether. He  asked,  how  can  a  gentleman  in  the  minority  get  a  re- 
consideration, unless  some  member  in  the  majority  has  changed  his 
opinion  ? 

Question  called  for. 

Mr.  Martin  was  opposed  to  the  motion.  He  approved  of  the  rule 
that  had  prevailed  in  the  Legislature  of  this  Commonwealth.  He 
said  a  thing  once  done  by  the  Convention,  was  done  forever ;  all 
opportunities  of  reconsideration  should  therefore  be  allowed.  Some 
of  the  members  who  live  in  the  neighboring  towns,  might  go  home 
on  Saturday,  and  be  prevented  by  a  snow  storm  from  returning  on 
Monday.  There  were,  seventy  from  Essex.  And  in  the  meantime 
^a  question  might  be  carried,  and  they  would  have  no  remedy.  Mr. 
President,  said  he,  I  call  this  rule  a  bridle  on  our  tongues.  I  hope 
the  motion  will  not  prevail.  I  hope  this  Convention  will  not  be 
bound  up  by  the  little  parliamentary  rule  that  prevails  in  Congress. 
It  may  do  very  well  there.  Most  of  the  members  of  Congress  are 
lawyers,  professional  men,  men  of  education  ;  but  it  is  not  so  with 
all  of  us.  We  know  what's  right,  and  what's  wrong  ;  but  it  is  not 
to  be  expected  that  we  can  express  ourselves  so  politely ;  we  have 
not  had  the  education  ;  but  we  know  when  the  rights  of  our  towns 
are  infringed. 

Question,  question. 

The  question  was  then  taken  on  Mr.  Webster's  amendment, 
and  carried  in  the  affirmative — 250  to  120. 

Mr.  Bliss  moved  that  the  rules  and  orders,  together  with  a  list  of 
the  members  and  of  the  committees,  be  printed  for  the  use  of  the 
members.     Ordered. 

Mr.  Martin  wished  to  have  the  rules  read.  He  said  he  was  pre- 
vented by  the  snow  storm  from  being  present  when  they  were  read 
before.  He  said  there  were  a  hundred  others  that  had  not  heard 
them. 

Mr.  Martin  was  answered  that  the  rules  were  passed,  and  not  then 
before  the  House — and  he  had  better  get  them  and  read  them  himself. 


48  MASSACHUSETTS    CONVENTION. 

Mr.  Dana,  chairman  of  the  committee  on  elections  and  returns, 
made  the  following  report : — 

The  committee  who  were  directed  to  receive  and  examine  the  returns  of  the  dele- 
gates to  the  Convention  from  the  several  towns  and  districts,  and  to  prepare  a  roll  of 
the  members,  have  attended  to  the  service  assigned  them,  and  ask  leave  to  report: — 
That  they  have  examined  the  copies  of  the  records  of  the  votes  of  all  the  towns  and 
districts  which  have  elected  delegates  to  the  Convention : 

And  they  find  the  records  to  have  been  duly  made,  and  fair  copies  of  said  records 
duly  attested  have  been  produced  by  the  respective  delegates — all  of  which  are  in 
the  usual  form,  except  the  return  from  Plymouth,  by  which,  it  appears  that  the  town- 
meeting  there,  was  continued  by  adjournment  to  the  second  day. 

The  committee  therefore  submit  the  following  resolution  : — That  all  the  delegates 
from  the  several  towns  and  districts  who  have  elected  members,  and  against  whose 
election  no  remonstrance  has  been  offered,  have  been  duly  elected. 

Mr.  Bangs  said  he  was  against  the  acceptance  of  the  report,  and 
moved  that  the  House  should  adjourn. 

Mr.  Salstonstall  moved  that  when  the  House  adjourned,  it 
should  adjourn  until  Monday,  at  11  o'clock.     Carried,  194  to  157. 

The  House  then  adjourned. 


Monday,  November  20. 

At  11  o'clock  the  Convention  was  called  to  order  by  the  President, 
and  the  Journal  of  Saturday's  proceedings  was  read. 

Mr.  Sullivan  of  Boston,  observing  that  he  was  appointed  on  two 
committees,  and  that  it  would  be  impossible  for  him  to  serve  on 
both,  requested  to  be  excused  from  serving  on  the  committee  on  the 
fourth  resolution.     Granted. 

Mr.  Welles  of  Boston,  for  the  same  reason,  was  excused  at  his 
request  from  serving  on  the  committee  on  the  fifth  resolution. 

Mr.  Webster,  for  a  like  reason  and  at  his  request,  was  excused 
from  serving  on  the  committee  upon  the  third  resolution. 

Mr.  Spooner  of  Fairhaven  was  excused  from  acting  on  the  third 
resolution,  on  the  suggestion  that  he  was  detained  from  attendance 
by  sickness  ;  and  Mr.  Barnard  of  Nantucket,  appointed  in  his  place. 

Mr.  Dearborn  of  Roxbury,  being  also  appointed  on  three  com- 
mittees, was  at  his  request  excused  from  serving  on  the  fourth. 

Mr.  Freeman  of  Sandwich,  for  a  like  reason  and  request,  was  ex- 
cused from  serving  on  the  first ;  Mr.  Sullivan  of  Brookline,  on  the 
ninth,  and  Mr.  Willis  of  Pittsfield,  on  the  seventh. 

Mr.  Dana,  observing  that  there  was  some  variation  in  the  copies 
of  the  constitution  which  he  had  examined,  and  that  the  copy  fur- 
nished to  the  members  by  the  order  of  the  Convention  had  some 
interlineations,  with  a  view  of  furnishing  an  authority  for  determin- 
ing the  correct  reading,  moved  the  following  order : 

Ordered,  That  the  Secretary  of  this  Commonwealth  be  requested  to  deliver  to  the 
President,  the  parchment  on  which  the  original  constitution  was  engrossed,  and 
which  was  deposited  in  the  archives  of  state,  to  lie  on  the  table  for  the  use  of  the 
members. 

Mr.  Sullivan  requested,  that  the  mover  of  the  order  should  so 


MASSACHUSETTS    CONVENTION.  49 

amend  it,  as  to  procure,  instead  of  the  original,  an  attested  copy  of 
it.  He  said  the  original  ought  not  to  leave  the  Secretary's  office, 
and  if  it  were  brought  here  it  is  so  large  that  it  could  not  be  con- 
veniently used. 

Mr.  Prince  of  Boston  suggested  an  amendment  which  was  ac- 
cepted by  the  mover,  as  follows : 

Ordered,  That  the  Secretary  of  this  Commonwealth  be  requested  to  collate  and 
compare  the  copy  of  the  constitution  printed  for  the  use  of  the  members  with  the 
original  in  the  Secretary's  office,  and  certify  that  it  is  correct,  if  so ;  otherwise  to  mi- 
nute the  variances. 

Thus  amended,  the  order  passed. 

The  report  of  the  committee  on  elections,  which  was  read  on 
Saturday,  was  then  taken  up,  and,  upon  a  motion  that  it  be 
accepted, 

Mr.  Varnum  of  Dracut  rose  and  said  he  was  unable  to  say  what 
the  practice  of  the  house  of  representatives  of  this  State  had  re- 
cently been  on  occasions  of  this  kind ;  but  he  thought  there  was  a 
great  impropriety  in  accepting  this  report  at  this  time.  Towns  may 
hereafter  come  forward  and  remonstrate  against  the  election  of  mem- 
bers who  come  here  to  represent  them,  but  after  this  report  is  ac- 
cepted, it  will  be  too  late.  The  acceptance  will  confirm  the  mem- 
bers in  their  seats.  He  said  it  was  the  custom  in  the  house  of 
representatives  of  the  United  States  to  have  the  report  lie  on  the 
table,  to  give  an  opportunity  for  contesting  the  election  of  members. 

Mr.  Dana  thought  there  was  much  propriety  in  the  observations 
of  the  gentleman  who  spoke  last,  and  that  the  course  pointed  out  by 
him  was  unobjectionable.  He  wished,  however,  that  the  return 
from  Plymouth  might  be  read  to  the  House.  The  Secretary  read 
the  return,  which  stated,  among  other  things,  that  the  town  met  on 
the  third  Monday  of  October  last,  and  voted  to  send  five  delegates. 
That  after  balloting  for  five,  it  appeared  three  only  were  elected ; 
that  the  meeting  was  adjourned  to  the  next  day,  when  Nathaniel 
M.  Davis  and  Benjamin  Bramhall,  were  duly  elected. 

Mr.  Dana  resumed  and  said  the  report  was  predicated  upon  this 
return.  That,  from  decisions  in  our  house  of  representatives,  he 
was  of  opinion  that  the  members  returned  were  entitled  to  their 
seats.  The  act  for  calling  the  Convention  says  that  the  towns  shall 
assemble  on  the  third  Monday  of  October,  and  elect,  &c.  The  con- 
stitution ordains  that  the  election  of  governor  shall  be  on  the  first 
Monday  of  April,  and  that  representatives  shall  be  elected  in 
May,  ten  days  at  least  before  the  last  Wednesday  of  that  month. 
There  is  a  distinction  between  the  phraseology  of  this  act  and  that 
of  the  constitution.  The  constitution  requires  that  the  election 
shall  take  place  on  a  certain  day,  or  previous  to  a  certain  day.  This 
act  provides  that  the  town  meeting  only  shall  be  on  a  certain  day  ; 
it  does  not  say  that  the  election  shall  be  on  the  same  day,  or  any 
day  in  particular.  And  he  submitted  it  to  the  House,  whether  the 
right  of  adjournment  is  not  implied  in  the  act,  since  there  is  no 
clause  expressly  taking  away  the  right.  He  observed  that  there 
7 


50  MASSACHUSETTS    CONVENTION. 

was  no  remonstrance  against  the  election,  and  no  reason  offered  for 
holding  it  invalid,  except  from  what  appeared  in  the  return  itself. 
The  election  of  a  representative  to  Congress  was  held  at  Plymouth 
on  the  same  day  in  the  forenoon,  and  after  the  ballot  for  delegates, 
it  appeared  that  three  only,  instead  of  five,  were  elected.  It  was 
about  sun-down  when  the  vote  was  ascertained.  The  question 
occurred  whether  they  had  a  right  to  adjourn.  A  motion  to  that 
effect  was  made  and  carried,  and  more  persons  were  present  the 
next  day  at  the  adjourned  meeting  than  had  attended  the  first  day. 
He  said  there  had  been  no  suggestion  of  fraud  or  improper  conduct ; 
the  only  reason  for  the  adjournment  was  want  of  time.  He  was  in 
favor  of  the  members  retaining  their  seats.  He  should  be  sorry  to 
have  that  ancient  town  of  the  landing  of  our  forefathers  denied  a 
representation  on  an  occasion  like  the  present,  when  their  error,  if 
any  had  been  committed,  arose  only  from  want  of  judgment.  That 
as  there  would  be  no  future  Convention,  there  could  be  no  danger 
from  the  precedent.  He  concluded  by  comparing  the  present  case 
to  what  takes  place  in  courts  of  justice,  where  relief  is  given  to 
error  when  not  accompanied  by  fraud. 

Mr.  Bangs  of  Worcester  stated  that  he  was  one  of  the  committee 
who  dissented  from  the  opinion  which  they  had  expressed  in  their 
report,  as  far  as  it  respected  the  Plymouth  members.  He  thought 
they  were  not  duly  elected,  and  not  entitled  to  their  seats.  The 
words  of  the  act  which  provided  for  the  Convention,  and  directed 
the  choice  of  delegates,  were,  that  the  inhabitants  should  assemble 
in  town  meeting  on  the  third  Monday  in  October,  and  should  elect 
one  or  more  delegates.  There  could  be  no  doubt  that  the  intention 
of  the  Legislature  was  that  the  election  should  be  holden  on  the  third 
Monday  of  October,  and  on  no  other  day.  If  they  had  not  intended 
to  confine  the  election  to  a  single  day,  they  would  have  so  expressed 
it.  They  would  have  said  they  should  be  elected  within  a  pre- 
scribed number  of  days,  as  was  provided  by  the  constitution  for  the 
choice  of  representatives  in  the  General  Court.  The  Legislature 
meant  to  make  a  distinction  between  this  case  and  that  of  repre- 
sentatives, otherwise  it  would  have  used  similar  language.  They 
have  said  the  meetings  shall  be  held  on  the  third  Monday,  and  have 
said  nothing  about  adjourning.  It  was  true  the  word  then  was  not 
used  in  the  act,  but  he  contended  the  meaning  was  the  same  as  if  it 
had  been.  He  asked  what  would  be  the  consequence  of  the  con- 
trary construction.  If  town  meetings  had  the  power  of  adjourn- 
ment, they  might  have  adjourned  to  any  time  previous  to  the  meet- 
ing of  the  Convention — to  this  very  day.  Delegates  may  yet  be 
chosen,  and  the  Convention  has  now  the  power  to  issue  precepts  to 
elect  delegates,  where  vacancies  exist,  or  to  supply  those  which 
shall  exist.  He  knew  it  might  be  said  that  this  was  an  assumption 
of  power  by  the  Legislature.  But  it  was  necessary  that  the  power 
should  be  exercised,  and  it  was  proper  that  the  Legislature  should 
assume  it,  and  that  they  should  establish  rules.  If  they  had  not  the 
power  to  fix  the  time  of  election,  they  had  no  power  to  establish 


MASSACHUSETTS    CONVENTION.  51 

any  other  rule.  It  was  not  for  Plymouth  to  assume  rights  that  no 
other  town  had,  or  to  adopt  another  rule.  He  did  not  agree  that  it 
was  sufficient  that  the  members  present  were  elected  without  fraud, 
and  were  fair  representatives  of  a  majority  of  the  inhabitants. 
Suppose  a  delegate  had  been  chosen  by  a  majority  of  paupers. 
He  would  by  this  doctrine  be  entitled  to  his  seat.  There  were 
many  instances  in  which  towns  were  not  able  to  complete  their 
election  on  the  day  fixed  for  it.  But  with  the  exception  of  Plym- 
outh, not  one  had  thought  of  an  adjournment.  They  had  recon- 
sidered the  votes  by  which  they  had  agreed  to  send  a  certain  num- 
ber, and  had  agreed  to  send  no  more  than  could  be  chosen  on  the 
day  fixed  by  the  law.  He  admitted  that  if  any  necessity  could  be 
demonstrated  for  an  adjournment  he  would  be  willing  to  admit  the 
members  to  their  seats,  but  there  was  no  such  necessity.  It  might 
have  been  inconvenient ;  but  the  town  might  have  chosen ;  there 
was  time  enough ;  they  adjourned  before  sunset,  thinking  it  would 
be  more  convenient  to  choose  on  another  day,  but  they  might  have 
completed  the  choice  on  the  same  evening. 

Mr.  Q,uincy  rose  to  move  that  the  report  lie  on  the  table.  He 
thought  the  idea  of  the  gentleman  from  Dracut  was  a  correct  one, 
that  questions  of  this  sort  should  not  be  sought  for  by  the  House, 
but  proceeded  upon  only  upon  remonstrance.  We  should  not  under- 
take to  disfranchise  Plymouth.  It  appeared  to  be  the  general  sense 
of  that  town  that  they  should  be  represented  by  five  delegates,  and 
that  the  sitting  members  returned  were  duly  elected.  He  would 
lay  the  report  on  the  table,  and  if  a  remonstrance  were  offered 
against  the  election  of  any  members,  they  could  be  taken  up  in 
regular  course.  But  it  would  be  an  unprofitable  inquiry  to  enter 
into  the  subject,  unless  the  inhabitants  represent  they  are  not  satis- 
fied. 

Mr.  S locum  wished  the  gentleman  who  moved  to  lay  the  report 
on  the  table  would  give  some  reasons  for  it.  He  did  not  hear  any. 
We  had  had  a  committee  to  make  a  thorough  examination  of  the 
subject,  and  the  committee  had  not  agreed.  What  shall  we  get  by 
laying  it  on  the  table  ?  It  would  only  give  to  the  eagle-eyed  in- 
habitants of  Plymouth  an  opportunity  to  remonstrate. 

Mr.  Story  entirely  agreed  with  the  gentleman  from  Dracut,  on 
the  propriety  of  laying  this  report  on  the  table.  It  seemed  to  be  the 
proper  course.  It  would  then  be  regular  for  any  member,  by  motion 
or  resolution,  to  take  the  sense  of  the  Convention  on  the  election  of 
the  delegates  from  Plymouth.  The  reasons  against  their  election 
appeared  on  the  return  itself.  They  were,  therefore,  necessarily  be- 
fore the  House,  and  he  thought  it  bound  to  act  upon  the  case  with 
or  without  a  remonstrance.  He  had  an  opinion  on  the  merits  of  the 
case,  which  he  should  express  on  a  proper  occasion. 

Mr.  Sullivan  of  Boston  was  opposed  to  laying  the  report  on  the 
table.  He  differed,  with  reluctance,  from  the  gentlemen  who  had 
spoken,  and  who  appeared  to  have  formed  their  opinions  on  the 
course  of  proceedings  in  Congress  ;  a  course  which  he  thought  not 


52  MASSACHUSETTS    CONVENTION. 

usual  in  this  Commonwealth.  Here  was  no  person  claiming  a  seat 
adversely  to  the  sitting  members  ;  no  remonstrance  from  any  in- 
habitants of  the  town  ;  and  no  denial  of  the  right  of  the  town  to 
send  the  number  of  delegates  who  had  taken  their  seats.  The  sin- 
gle question  was,  whether  the  town,  under  the  circumstances,  was 
authorized  to  continue  a  meeting  legally  assembled,  to  the  next  day 
by  adjournment  ?  Nobody  complains  of  fraud,  unfairness,  or  sur- 
prise. Nobody  doubts  that  the  two  gentlemen  sit  here  with  the 
full  approbation  of  the  town.  He  thought  the  effect  of  laying  the 
report  on  the  table  might  be  rather  to  invite  remonstrance  and  com-  . 
plaint,  and  to  give  an  occasion  to  busy  people  to  interfere.  He 
hoped,  therefore,  the  Convention  would  decide  the  question  at  once. 
He  thought  it  a  question  of  no  difficulty,  and  was  opposed  to  post- 
poning the  decision. 

Mr.  Bartlett  of  Plymouth  was  against  laying  the  report  on  the 
table.  He  said  he  would  state  the  facts  respecting  the  election  at 
Plymouth.  On  the  third  Monday  of  October,  in  the  morning,  the 
town  chose  a  representative  to  Congress.  Afterwards  the  question 
was  taken  how  many  delegates  they  should  send  to  the  Convention, 
and  it  was  determined  that  they  should  send  five.  They  proceeded 
to  ballot,  and  after  the  votes  were  counted,  it  was  declared  that  three 
only  were  chosen.  It  was  near  dark  when  the  vote  was  declared, 
and  if  they  had  proceeded  to  ballot  for  the  other  two  it  would  have 
been  necessary  to  have  had  lights.  This  gave  rise  to  a  question 
whether  it  would  be  legal  to  go  on.  Some  thought  not.  Another 
question  then  came  up  whether  the  meeting  could  adjourn.  Legal 
advice  was  taken,  which  was  in  favor  of  the  right  to  adjourn,  and 
the  meeting  then  voted  unanimously  to  adjourn.  The  next  day  the 
meeting  was  fuller  than  it  had  been  on  Monday.  Mr.  B.  said  he 
had  heard  no  suggestion  of  any  general  dissatisfaction,  and  he 
thought  there  would  not  be  found  more  than  four  or  five  individ- 
uals disposed  to  remonstrate.  He  thought  there  could  be  no  ques- 
tion in  the  case,  except  in  regard  to  the  legality  of  the  adjournment , 
and  as  to  this  he  felt  himself  incompetent  to  decide  ;  but  he  hoped 
the  decision  of  the  House  would  be  in  favor  of  the  town  of  Plym- 
outh's having  her  full  representation. 

Mr.  Dutton  of  Boston  said  he  rose  to  call  the  attention  of  the 
House  to  the  real  state  of  the  question.  The  question  was, 
whether  the  report  of  the  committee  should  lie  on  the  table ;  he 
said  the  case  of  the  Plymouth  election  was  part  of  the  report,  and 
might  be  called  up  by  any  member  after  the  report  itself  was  laid 
on  the  table;  and  after  the  present  question  was  disposed  of,  he 
should  make  a  motion  for  that  purpose. 

The  question  was  taken  for  laying  the  report  on  the  table,  and 
passed  in  the  affirmative. 

Mr.  Dutton  then  offered  the  following  resolution : 

Resolved,  That  Nathaniel  M.  Davis  and  Benjamin  Bramhall  are  duly  elected  and 
returned  as  delegates  from  the  town  of  Plymouth. 


MASSACHUSETTS    CONVENTION.  53 

Mr.  Hoar  of  Concord  regretted  that  since  the  Convention  was  . 
only  concerned  to  know  that  there  was  a  real  representation  of  the 
wishes  of  all  the  people  in  the  Convention,  and  was  not  in  a  situa- 
tion to  establish  precedents,  for  ordinary  cases,  any  question  of  the 
legality  of  an  election  had  arisen.  He  did  not  know  the  gentlemen 
returned  from  Plymouth,  nor  any  of  their  opinions ;  but  since  no 
remonstrance  had  been  presented  against  them,  it  was  fair  to  pre- 
sume that  they  represented  the  feelings  and  sentiments  of  the  town. 
The  question  was,  whether,  on  a  liberal  construction  of  the  law, 
they  were  entitled  to  their  seats.  If  they  were,  they  ought  to  hold 
them ;  and  since  to  deprive  them  of  their  seats  would  be  to  deprive 
their  constituents  of  their  equal  voice  in  the  Convention,  it  ought 
not  to  be  done,  unless  such  a  construction  of  the  law  was  abso- 
lutely necessary.  If,  on  a  liberal  construction,  they  could  not  be 
considered  as  fairly  chosen,  they  could  not,  of  course,  retain  then- 
seats.  He  differed  from  the  gentleman  from  Worcester,  (Mr. 
Bangs)  in  the  premises,  rather  than  in  the  conclusion.  He  should 
agree  at  once,  that  they  must  appear  to  be  chosen  according  to  the 
provision  of  the  act ; — but  the  question  was,  what  is  that  provision, 
under  a  just  and  liberal  construction  ?  If  there  were  fraud,  on  the 
part  of  the  presiding  officers,  the  sitting  members,  or  any  other  per- 
sons, that  would  be  a  different  question.  No  such  fraud,  nor, 
indeed,  any  unfairness  was  pretended.  It  was  admitted  that  the 
whole  proceeding  was  fair  and  well  intended : — so  that  the  only 
question  was,  were  the  members  chosen,  in  pursuance  of  the  act, 
giving  to  the  act  a  liberal  and  reasonable  construction. 

The  language  of  the  act  is — "  that  the  inhabitants  of  the  towns, 
&c,  shall  assemble  on  the  third  Monday  in  October,  at  a  meeting 
duly  warned,  &c,  and  shall  elect  delegates,  &c."  The  question  is, 
when  shall  they  elect  ?  Not,  expressly,  then,  or  on  that  day.  But, 
as  he  contended,  on  that  day  the  meeting  is  to  be  holden,  and  the 
delegates  chosen  at  that  meeting.  It  is  not  necessary,  in  order  to 
supply  the  elision  in  the  phraseology,  to  read  the  clause  thus — that 
the  inhabitants  "  on  that  day  '?  elect,  &c.  It  suits  as  well  gram- 
matical arrangement  to  read  it,  thus — they  shall,  "  at  that  meeting  " 
elect.  As  the  words  will  bear  this  construction,  and  as  the  rights  of 
the  town  seem  to  require  it,  it  ought  to  be  adopted,  unless  some 
evil  consequence  should  result  from  it.  He  saw  no  such  evil  con- 
sequence upon  the  case  as  stated ;  there  was  a  full  and  fair  expres- 
sion of  the  sense  of  the  town ;  and  we  ought  to  receive  it,  unless 
prevented  by  positive  provisions  or  clear  expressions  of  the  law.  His 
own  opinion  was,  that  if  the  town  assembled  on  the  right  day,  and 
by  accident  or  otherwise  were  prevented  from  completing  the  elec- 
tion on  that  day,  they  had  a  right  to  adjourn  to  the  next  day.  This 
was  analogous  to  other  cases.  Sheriffs  were  "bound  to  serve  process, 
within  certain  days — such  as  to  take  land  on  execution.  The 
words  of  the  several  laws  governing  such  cases  were  not  dissimilar 
to  those  of  the  act  under  which  we  sit.  Yet  it  had  often  been  de- 
cided, that  if  the  process  were  begun  within  the  statute  time,  it  was 


54  MASSACHUSETTS    CONVENTION. 

sufficient,  and  might  be  continued  afterwards  till  completed.  Now, 
why  should  we  adopt  a  narrower  construction,  on  this  occasion,  in 
which  the  whole  people  had  so  great  an  interest,  than  the  courts  of 
law  had  adopted,  in  a  mere  question  of  property  ?  Of  all  questions, 
it  was  one  best  entitled  to  a  liberal  construction — And  on  this  very 
subject  of  elections,  he  thought  there  were  precedents  in  point.  By 
an  ancient  English  statute  it  had  been  ordered  that  the  sheriff 
should  make  election  of  knights,  &c,  "between  the  hours  of  eight 
and  eleven."  Yet  it  had  always  been  holden  that  if  he  began 
the  election  between  these  hours,  he  might  continue  it  afterwards 
till  a  choice  were  made.  This  seemed  to  be  reasonable ;  to  grow 
out  of  the  necessity  of  the  case.  If  a  corporation  could  not  get 
through  its  business  on  one  day,  it  ought  of  common  justice  to 
have  a  right  to  adjourn.  He  would  repeat  that  this  was  not  an 
occasion  to  take  minute  exceptions  to  the  form  of  returns.  He  had 
been  well  informed,  that  in  the  Convention  of  1779-80,  there  was 
great  liberality  on  this  subject ; — so  much  so,  that  no  members  com- 
ing up  from  certain  towns,  the  Convention,  by  its  own  authority, 
wrote  to  such  towns  to  send  up  members.  Whether,  therefore,  he 
regarded  it  as  a  matter  of  strict  law,  or  as  fit  rather  to  be  governed 
by  liberal  precedent,  he  thought  the  two  gentlemen  from  Plymouth 
entitled  to  their  seats. 

Mr.  D.  Davis,  the  Solicitor  General  and  delegate  from  Boston, 
was  in  favor  of  the  resolution.  He  said  the  question  turns  upon 
the  power  of  the  selectmen  to  adjourn  the  meeting  for  the  choice 
of  the  delegates — and  he  stated  as  a  position,  that  the  power  of 
towns  to  adjourn  their  meetings  when  necessary,  was  inherent  in 
the  corporation,  in  all  cases  when  this  power  was  not  expressly 
limited  or  taken  away.  He  knew  of  but  one  case  when  the  power 
of  adjournment  of  a  town  meeting,  was  taken  away  by  a  general 
existing  provision — which  is  the  case  of  a  general  election  for  state 
officers.  The  constitution  requires  that  there  shall  be  a  meeting  of 
the  inhabitants  in  the  several  towns  for  the  choice  of  senators  and 
counsellors  on  the  first  Monday  of  April,  annually — but  it  is  not 
expressly  required  by  this  part  of  the  constitution  that  the  election 
shall  be  on  that  day ;  and  even  if  not  for  another  provision,  respect- 
ing the  choice  of  governor,  &c,  there  was  no  express  provision 
against  a  necessary  adjournment  of  a  meeting  in  that  case.  But  in 
that  part  of  the  constitution  which  relates  to  the  election  of  gov- 
ernor, it  is  required  that  the  meeting  for  the  election  of  governor, 
&c,  shall  be  on  the  first  Monday  of  April,  that  is,  on  the  day  ap- 
pointed for  the  election  of  senators  and  counsellors,  and  that  the 
votes  for  governor  and  lieut.  governor  shall  be  given  in  on  that  day. 

In  the  present  case  there  is  nothing  in  the  act,  under  the  author- 
ity of  which  the  election  was  made,  which  requires  that  the  votes 
shall  "be  given  in"  on  the  third  Monday  of  October.  The  sec- 
ond section  of  the  act  requires  that  the  inhabitants  shall  assemble 
on  that  day,  and  shall  elect  their  delegates ;  not  expressly  requiring 
that  the  election  shall  positively,  and  at  all  events,  take  place  on 
that  day. 


MASSACHUSETTS    CONVENTION.  55 

Further,  the  statute  provides,  "that  at  such  meeting  of  the  in- 
habitants, every  person  entitled  to  vote,  &c,  shall  have  a  right  to 
vote  in  the  choice  of  delegates."  Now  if  the  power  of  adjourn- 
ment is  inherent  in  the  corporation,  unless  expressly  taken  away  in 
this  case,  the  meeting  at  which  these  votes  were  given  in  on  the 
17th  of  October,  was  the  same  meeting  at  which  the  electors  assem- 
bled on  the  16th,  it  being  legally  kept  open  by  adjournment ;  and 
consequently,  "at  such  meeting  "  every  qualified  voter  had  a  right  to 
vote  in  the  choice  of  these  delegates ;  which  right  they  could  not 
be  legally  deprived  of. 

This  right  to  adjourn,  is  not  only  inherent  in  the  corporation,  and 
necessary  for  the  exercise  of  the  corporate  powers  of  towns,  but  is 
agreeable  to  all  the  usages  of  the  country,  both  before  and  after  the 
adoption  of  the  constitution.  For  these  reasons,  the  Solicitor  Gen- 
eral was  of  opinion,  that  the  election  of  the  two  members  on  the 
17th  was  strictly  legal.  But  if  it  were  necessary  to  resort  to  a 
construction  of  the  statute,  the  rules  of  such  construction,  by  all 
laws,  both  constitutional  and  municipal,  required  that  the  construc- 
tion should  not  only  be  liberal,  but  fully  in  favor  of  the  rights  of 
the  party ;  and  that  no  rule  could  be  admitted  which  would  justify 
the  Convention  in  giving  such  a  construction  of  the  statute,  as 
would  deprive  the  members  of  an  important  right. 

Question  called  for. 

Mr.  Story  of  Salem  said  he  perceived  gentlemen  were  impatient 
to  take  the  question,  but  he  would  request  their  indulgence  while 
he  made  a  few  remarks  only.  He  said  he  was  in  favor  of  the  reso- 
lution. That  on  the  closest  and  most  impartial  examination  of  the 
subject  he  was  convinced  that  the  members  returned  from  Plymouth 
were  duly  elected.  The  act  for  calling  the  Convention  was  cer- 
tainly susceptible  of  two  constructions,  one  of  which  would  ex- 
clude these  members  from  their  seats,  and  the  other  would  not 
exclude  them  —  and  both  constructions  were  capable  of  being 
easily  defended  by  men  as  ingenious  as  the  gentleman  from  Wor- 
cester, (Mr.  Bangs.)  Mr.  S.  said,  to  ascertain  the  intention  of  the 
Legislature,  the  whole  act  should  be  examined.  It  was  clear  from 
the  long  practice  of  towns  in  this  Commonwealth  that  they  have 
the  power  to  adjourn  their  meetings  unless  where  they  are  expressly 
restricted.  The  power  to  adjourn  town  meetings  will  not  be  found 
in  any  of  our  statutes.  He  had  examined  them  for  the  express 
purpose  of  ascertaining  the  fact.  Upon  what  principle  then,  does 
it  depend?  Necessity.  It  is  a  necessary  power.  The  laws  include 
many  necessary  powers  which  are  not  expressed.  In  the  months  of 
March  or  April,  town  officers  are  required  to  be  chosen.  The  select- 
men in  calling  a  meeting,  make  out  their  warrants  for  a  specific 
day,  and  yet  the  towns  adjourn  from  time  to  time  until  all  their 
officers  are  chosen.  And  this  would  be  considered  a  legitimate 
exercise  of  their  power  by  every  court  of  law  in  the  Common- 
wealth. Representatives  to  the  General  Court  are  to  be  chosen  ten 
days  previous  to  the  last  Wednesday  in  May.    What  is  the  practice  ? 


56  MASSACHUSETTS    CONVENTION. 

The  towns  have  no  express  power  to  adjourn,  and  yet  in  contested 
cases  they  adjourn  from  day  to  day  until  the  election  is  completed. 
The  Legislature  did  not,  in  this  act,  intend  to  abridge  the  powers 
of  towns.  If  a  representative  can  be  chosen  at  an  adjourned  meet- 
ing, a  delegate  may.  'Mr.  S.  then  read  the  last  sentence  of  the 
second  section  of  the  act  for  calling  the  Convention,  which  says  the 
meetings  shall  be  regulated  &c,  in  the  same  manner  as  those  for 
the  choice  of  representatives,  &c.  He  then  asked,  is  it  not  clear 
to  the  gentleman  from  Worcester,  that  a  delegate  may  be  chosen 
under  the  existing  laws  for  the  choice  of  representatives?  Mr.  S. 
thought  no  gentleman  would  feel  so  strong  in  his  own  opinion,  as 
to  say  that  this  construction,  maintained  for  many  years  respecting 
adjournments,  was  not  a  sound  one.  He  said  he  stood  upon  the  text. 
If  then  by  a  fair  construction,  the  meeting  only,  and  not  the  choice, 
was  to  take  place  on  the  third  Monday  of  October,  they  were  bound 
by  the  intention  of  the  Legislature,  and  the  rights  of  the  people,  to 
uphold  this  return.  If  it  were  necessary  to  step  over  the  law  at  all, 
he  should  not  advocate  this  motion ;  but  when  they  were  met  to 
advise  only,  not  to  do  the  last  act,  the  most  liberal  construction 
should  be  given  to  the  statute  if  necessary.  But  it  was  not  neces- 
sary. The  election  at  Plymouth  came  within  the  laws ;  and  they 
were  bound  not  to  infringe  the  rights  of  that  venerable  and  ancient 
and  excellent  corporation. 

Mr.  Slocum  of  Dartmouth  wished  the  gentleman  would  vary  his 
motion  so  that  it  should  declare  that  the  gentlemen  from  Plymouth 
were  entitled  to  their  seats,  instead  of  saying  that  they  were  duly 
elected.  He  thought  they  ought  to  go  according  to  the  spirit  of  the 
law,  and  not  according  to  the  letter.  If  they  were  to  go  by  the 
letter,  he  was  sure  it  was  dead.  But  by  the  spirit,  he  thought  they 
were  entitled  to  their  seats.  The  President  read  the  order,  and  said 
the  import  of  it  was  the  same,  as  of  the  language  he  had  suggested. 
Mr.  S.  said  he  thought  it  more  soft  and  delicate,  and  he  should  give 
his  vote  more  freely  if  the  motion  was  so  amended.  He  had  a  great 
respect  for  the  town  of  Plymouth,  the  place  where  our  forefathers 
first  landed,  and  he  hoped  we  should  not  deprive  them  of  their 
rights.  We  ought  to  adopt  a  liberal  construction  of  the  law.  If 
that  town  had  taken  fire  while  the  town  meeting  were  proceeding 
in  their  election,  and  had  time  only  to  adjourn,  should  we  not  on 
the  spirit  of  the  law  confirm  their  proceedings,  if  they  had  gone  on 
to  elect  delegates  the  next  day  ?  He  thought  the  House  would, 
and  he  hoped  these  members  would  be  allowed  to  hold  their  seats, 
though  he  did  not  mean  to  say  he  thought  they  were  duly  elected. 

The  question  was  taken  on  accepting  the  resolve,  and  passed  in 
the  affirmative. 

Mr.  Dana,  after  some  remarks  on  the  crowded  state  of  the  House, 
and  the  inconveniences  to  which  many  members  were  subjected  for 
want  of  good  seats,  moved, 

That  the  delegates  from  the  town  of  Boston  be  instructed  to  in- 
quire if  it  were  not  possible  to  procure  for  the  accommodation  of 


MASSACHUSETTS    CONVENTION.  57 

the  Convention,  a  more  convenient  place  of  assembling,  and  to  re- 
port as  soon  as  possible.     Passed  in  the  negative. 

Mr.  L.  Lincoln  was  excused,  at  his  request,  from  serving  on  the 
committee  upon  the  7th  resolution. 

Mr.  Walter  of  Boston  moved  a  resolve  instructing  the  commit- 
tee appointed  on  the  10th  resolution,  to  inquire  into  the  propriety 
and  expediency  of  altering  the  constitution  so  that  the  Legislature 
should  have  power  to  grant  to  towns,  charters  of  incorporation,  with 
the  usual  forms  of  city  government.  In  support  of  his  motion,  he 
stated  at  some  length,  the  proceedings  which  had  been  had,  from 
time  to  time,  in  the  town  of  Boston,  with  a  view  of  obtaining  the 
establishment  of  such  a  form  of  government ;  and  the  difficulties 
that  had  arisen  from  the  language  of  the  constitution. 

The  motion  was  carried,  yeas  273,  and  the  House  adjourned. 


Tuesday,  November  21. 

The  Convention  was  called  to  order  at  10  o'clock,  and  attended 
prayers  offered  by  the  Rev.  Mr.  Palfrey,  chaplain  of  the  senate. 

The  journal  of  yesterday's  proceedings  having  been  read,  a  re- 
port from  the  Secretary  of  the  Commonwealth,  made  in  pursuance 
of  the  order  of  yesterday,  was  received  and  read.  It  stated  that  he 
had  compared  the  copy  of  the  constitution,  printed  and  ordered  for 
the  use  of  members,  with  the  engrossed  copy  in  the  office  of  the 
secretary  of  State,  and  that  he  had  found  it  incorrect  in  a  consider- 
able number  of  particulars,  which  he  stated,  and  that  it  was  correct 
in  all  other  parts. 

Mr.  Varnum  moved  that  a  number  of  copies  of  the  report,  suffi- 
cient for  the  use  of  members  of  the  Convention,  be  printed,  which 
motion  was  agreed  to. 

Mr.  Richardson  of  Dedham  was  appointed  on  the  committee  on 
the  third  resolution,  in  the  place  of  Mr.  Webster,  who  was  excused. 

Mr.  Hyde  of  New  Marlborough,  on  the  fourth,  in  the  place  of 
Mr.  Dearborn. 

Mr.  Pike  of  Newburyport,  on  the  fourth,  in  the  place  of  Mr.  Sul- 
livan. 

Mr.  Dutton  of  Boston  on  the  fifth,  in  the  place  of  Mr.  Wells. 

Mr.  Hopkins  of  Great  Barrington,  in  the  place  of  Mr.  Willis  of 
Pittsfield. 

Mr.  Gifford  of  Westport,  in  the  place  of  Mr.  Lincoln. 

Mr.  Dawes  of  Boston  was  appointed  on  the  ninth,  in  the  place  of 
Mr.  Sullivan  of  Brookline  ;  but  at  his  request  was  excused,  and 
Mr.  Tilden  of  Boston  was  appointed  in  his  place. 

Mr.  Dana,  from  the  committee  on  contested  elections,  made  the 
following  report : 

The  committee  on  contested  elections,  to  whom  was  committed  the  remonstrance 
of  Timothy  Walker  and  others,  inhabitants  and  electors  of  Charlestown,  against  the 
Hon.  Leonard  M.  Parker's  holding  a  seat  in  this  Convention,  have  attended  that 
service,  and  ask  leave  to  submit  to  the  Convention  the  following  report : — 
8 


58  MASSACHUSETTS    CONVENTION. 

That  it  satisfactorily  appeared  to  your  committee,  that  the  inhabitants  of  Charles - 
town,  legally  qualified  to  vote  at  this  election,  duly  assembled  in  town  meeting  on  the 
day  appointed  by  law,  and  voted  to  send  six  members  to  this  Convention,  it  being  the 
whole  number  they  were  entitled  to  by  law.  That  the  selectmen  thereupon  duly 
opened  the  balloting,  and  stated  that  the  poll  would  be  closed  at  a  quarter-past  four 
o'clock,  P.  M.  The  balloting  was  completed  and  the  poll  closed  at  or  soon  after  the 
time  appointed.  On  counting  and  sorting  the  votes,  it  appeared  that  the  five  other 
members  from  the  town  of  Charlestown  only  were  elected,  and  that  the  said  Leon- 
ard M.  Parker  was  not  elected — the  votes  having  been  given  for  sending  other  gen- 
tlemen, and  none  having  had  a  majority.  After  which,  it  was  duly  moved  and  sec- 
onded, that  the  town  so  far  reconsider  their  former  vote  as  to  send  but  five  members 
to  the  Convention.  Which  motion,  the  selectmen,  after  consultation,  declined  putting, 
and  thereupon  called  on  the  electors  to  bring  in  their  votes  for  a  sixth  member.  The 
electors  then  proceeded  to  ballot,  and  the  selectmen,  on  counting  and  sorting  the 
votes,  found  that  the  said  Leonard  M.  Parker  had  a  majority,  and  declared  him 
elected. 

Your  committee,  however,  are  fully  satisfied  that  the  selectmen  acted  from  pure 
motives,  and  if  it  was  their  duty  to  have  put  the  said  motion,  their  declining  was 
merely  an  error  of  judgment.  On  consideration  of  the  foregoing  facts,  your  com- 
mittee respectfully  submit  the  following  resolution. 

SAMUEL  DANA. 

Resolved,  That  the  Hon.  Leonard  M.  Parker,  having  been  duly  elected,  is  entitled 
to  a  seat  in  this  Convention,  and  ought  to  be  confirmed  in  his  seat. 

Mr.  Dana  begged  leave  to  state,  in  relation  to  the  report  which 
had  been  read,  that  two  of  the  members  of  the  committee  were  ab- 
sent when  it  was  agreed  upon,  and  two  were  opposed  to  the  report. 
He  said  that  he  was  himself  in  favor  of  it ;  he  could  never  satisfy 
his  mind  with  the  decision  which  had  been  made  in  the  house  of 
representatives,  disfranchising  a  large  town  containing  forty-five 
thousand  inhabitants,  (alluding  to  the  Boston  election  of  represent- 
atives, in  1818,)  for  an  error  of  judgment  in  the  selectmen.  He 
proceeded  to  state  some  of  the  facts  relating  to  the  election  of  dele- 
gates from  Charlestown.  No  fraud  was  asserted  or  pretended  in  the 
case.  A  vote  was  taken  in  the  first  place  to  send  six  delegates. 
The  balloting  then  commenced,  and  upon  counting  and  assorting 
the  votes,  it  appeared  that  370  ballots  had  been  given,  and  that  five 
only  of  the  persons  voted  for  were  elected.  A  motion  was  then 
made  to  reconsider  the  vote  which  had  passed  at  the  opening  of  the 
meeting,  so  far  as  respected  the  sixth  delegate.  The  selectmen 
asked  for  "time  to  consider  of  the  motion;  which  was  denied  them. 
They  then  consulted  together,  and  concluded  not  to  put  the  motion. 
It  certainly  was  not  to  be  wondered  at,  when  the  united  wisdom 
and  learning  and  talents  of  this  Convention  had  spent  two  days 
upon  the  puzzling  subject  of  reconsideration,  that  the  selectmen  of 
one  of  our  towns  should  feel  themselves  at  a  loss  when  such  a 
question  came  suddenly  before  them. 

After  the  gentleman  from  Groton  had  finished,  Mr.  M.  Porter  of 
Hadley  said  one  fact  had  been  omitted  by  him,  which  he  should 
have  stated, — that  when  the  whole  committee  were  together,  four 
out  of  the  seven  were  of  opinion  that  the  seat  of  the  gentleman 
from  Charlestown  should  be  vacated. 

Mr.  J.  Phillips  of  Boston  said  the  facts  stated  in  the  report  were 
alone  before  the  House,  and  that  the  fact  of  the  selectmen's  requir- 


MASSACHUSETTS    CONVENTION.  59 

ing  time  to  make  up  their  minds,  did  not  appear  there.  He  ad- 
verted to  the  usage  in  this  State,  in  relation  to  the  election  of 
representatives  to  the  General  Court,  and  said  the  selectmen  were, 
by  the  act  for  calling  the  Convention,  required  to  regulate  town 
meetings  for  the  choice  of  delegates,  in  the  same  manner  as  for  the 
choice  of  representatives,  and  that  the  same  proceedings  were  to  be 
had.  How  would  this  case  stand  then,  if  it  had  been  the  case  of  a 
representative  ?  It  had  been  decided  by  the  judges  of  our  supreme 
court,  that  the  right  of  determining  on  the  number  of  representa- 
tives, was  a  corporate  right  of  the  town.  It  was  on  this  ground 
that  the  house  of  representatives  had  declared  elections  of  the  towns 
of  Boston  and  Roxbury  invalid,  because  the  selectmen  had  refused 
to  take  the  question  how  many  representatives  the  town  would 
send.  With  these  two  concording  decisions  staring  them  in  the 
face,  will  the  Convention  make  one  directly  contrary  ?  He  would 
give  no  opinion  on  this  question,  but  he  thought  the  subject  de- 
served much  consideration.  The  town  of  Charlestown,  he  observed, 
was  six  or  seven  miles  long.  It  was  presumable  that  many  of  the 
inhabitants  had  returned  to  their  homes.  It  appeared  that  a  major- 
ity of  the  voters  were  opposed  to  sending  the  gentleman  who  now 
claims  his  seat.  What  then,  was  the  proper  course  ?  what  was  the 
dictate  of  good  fellowship  in  such  a  case  ?  It  was  the  dictate  which 
was  followed  by  Mr.  Walker.  He  made  a  motion  to  reconsider  the 
former  vote,  so  far  as  concerned  a  sixth  delegate.  If  he  had  a  right 
to  make  this  motion,  the  conduct  of  the  selectmen  ought  not  to  be 
sanctioned  by  the  vote  of  this  Convention.  The  gentleman  re- 
turned was  a  man  of  too  much  elevation. of  mind — he  was  too  well 
informed,  to  suppose  that  the  remarks  now  made,  had  reference  to 
his  individual  case — that  his  case,  considered  by  itself,  was  to  be 
settled — their  decision  was  to  form  a  precedent  for  the  guide  of  se- 
lectmen in  all  future  elections  of  representatives,  and  he  hoped  to 
have  heard  better  arguments  than  the  good  intentions  of  the  se- 
lectmen. 

Mr.  Lawrence  of  Groton,  referring  to  the  statements  which  had 
been  made  of  the  opinions  of  members  of  the  committee,  said  he 
thought  it  was  totally  immaterial  whether  the  committee  had  given 
any  opinion  on  the  question  whether  he  is  entitled  to  his  seat.  He 
was  sorry  to  differ  from  the  honorable  gentleman  from  Boston  whose 
experience  and  familiarity  with  all  precedents  of  legislative  bodies 
on  questions  of  this  sort,  entitled  his  opinion  to  great  weight.  Bat 
he  thought  that  no  decision  that  should  be  made  here  could  be 
drawn  into  precedent  hereafter,  because  the  Convention  was  differ- 
ently organized  from  any  legislative  body.  He  was  on  the  com- 
mittee of  the  Legislature  which  framed  the  law  for  calling  this  Con- 
vention. He  said  it  was  not  the  intention  of  the  committee  that  the 
Convention  should  be  bound  by  the  precedents  in  the  house  of  rep- 
resentatives any  farther  than  related  to  the  form  of  proceedings.  In 
settling  the  number  and  distribution  of  the  delegates  to  the  Conven- 
tion, the  Legislature  fixed  upon  the  principle  that  towns  should  be. 


60  MASSACHUSETTS    CONVENTION. 

entitled  to  elect  as  many  delegates  as  they  can  choose  representatives 
in  the  General  Court.     He  contended  that  the  principles  which  had 
been  settled  in  the  house  of  representatives  ought  not  to  be  drawn 
into  precedent  on  this  occasion.     This  body  was  differently  organ- 
ized, and  they  are  convened  for  different  objects.     It  was  intended, 
and  it  is  desirable,  that  all  the  interests,  and  all  parts  of  the  Com- 
monwealth should  be  as  fairly  and  equally  represented  as  possible, 
and  for  this  object  that  a  liberal  construction  should  be  given  to  the 
principles  which  govern  in  cases  of  election.     He  was  glad  to  per- 
ceive the  liberality  of  the  Convention,  in  their  decision  of  yesterday 
in  relation  to  the  members  from  Plymouth,  and  he  hoped  the  same 
liberal  principles  would  govern  their  decision  in  this  case.     He  pro- 
ceeded to  distinguish  the  present  case  from  the  cases  which  had 
been  cited  as  decided  in  the  house  of  representatives,  and  first  the 
case  of  the   Boston  members  in  1818.     The  question  in  that  case 
was  decided  on  the  principle  that  the  right  of  choosing  representa- 
tives was  a  corporate  right ;  that  the  corporation  had  a  right  to  de- 
termine  how  many  representatives  they  would  elect,    and  conse- 
quently that  any  inhabitant  had  a  right  to  make  a  motion  for  limiting 
them  to  a  certain  number.     The  number  in  the  present  case  having 
been  fixed  by  a  vote  of  the  town,  it  presented  on  that  ground  a  dif- 
ferent principle   for  the  government   of  the  presiding  officer  at  the 
meeting.     He  referred  to  the  Roxbury  case,  and  contended  that  there 
was  no  analogy  between   it  and  the  present  case.     He  adverted  to 
another  principle.     The  representatives  in  the  General  Court  are  paid 
by  the   towns,  and  this  fact  furnishes  the  reason  why  they  have  a 
right  to  settle  the  number  by  a  vote.     This  reason  does  not  apply 
to  the  case  of  delegates  who  are  paid  out  of  the  public  chest.     Re- 
ferring more  particularly  to  the  proceedings  in  the  meeting  at  Charles- 
town,  the  first  thing  which  was  done  when  the  meeting  was  full, 
was  to  take   the  sense  of  the  house  with  regard  to  the  number  of 
delegates  they  would  send.     The  result  was  a  vote  to  send  six,  after 
which  many  inhabitants  went  away  in  expectation  that  such  a  num- 
ber would  be  chosen,  and  presuming  they  should  be  satisfied  with 
the  members  who  should  be  chosen.     In  this  state   of  things  he 
thought   it  was  not  proper,  after  many  of  the   inhabitants  of  the 
town,  some  of  them  residing  at  a  distance,  had  gone  to  their  homes, 
that  the  vote  should  be  reconsidered.     In  the  decision  of  contested 
elections  in  the  house   of  representatives,  the  great  object  has  been 
to  prevent  fraud,  and  to  demand  that  the  proceedings  of  the  meeting 
should  be  open  and  fair.     He  asked,  would  it  not  be  unfair  in  a 
meeting,  in  which  it  had  been  in  full  meeting  voted  to  elect  a  cer- 
tain number,  for  a  part  of  the  inhabitants,  after  many  had  retired, 
because  they  could  not  get  their  favorite  candidates  elected,  to  make 
a  motion  for  reconsideration.     He  thought  it  was  right  in  the  select- 
men to  refuse  to  put  such  a  vote.     As  therefore  the  member  whose 
election  was  now  contested,  was  fairly  chosen,  in  pursuance  of  the 
vote   of  the  town,  taken  at  the   opening  of  the  meeting  when  the 
house  was  full,  and  as  it  was  reasonable  in  the  selectmen  to  refuse 


MASSACHUSETTS     CONVENTION.  61 

to  put  a  motion  for  rescinding  that  vote  after  a  part  of  the  inhabitants 
had  retired  to  their  homes,  he  hoped  that  the  member  returned  would 
be  allowed  to  retain  his  seat. 

Mr.  Dutton.  I  agree  with  the  gentleman  from  Groton,  and  am 
in  favor  of  accepting  the  report.  There  are  two  provisions  in  the 
law,  under  which  we  are  assembled,  relating  to  this  subject.  One 
is,  that  "  all  the  laws  now  in  force  regulating  the  duty  and  conduct 
of  town  officers,  sheriffs,  magistrates  and  electors  in  the  elections  of 
governor,  lieutenant  governor,  counsellors  and  senators,  and  repre- 
sentatives, shall,  as  far  as  applicable,  apply  and  be  in  full  force  and 
operation  as  to  all  meetings  holden,  and  elections  and  returns  made 
under  this  act,"  &c.  &c.  The  other  is,  that  the  Convention  shall  be 
the  "  judges  of  the  returns  and  elections  of  their  own  members," 
&c.  The  first,  I  apprehend,  sir,  is  merely  formal,  and  provides  that 
the  several  towns  shall  act  by  their  usual  organs,  leaving  it  to  the 
Convention  to  exercise  its  own  judgment  upon  their  proceedings. 
The  right  to  decide  in  all  cases  upon  the  elections  and  returns  of  its 
own  members,  is  not  only  expressly  given  by  the  law  to  the  Con- 
vention, but  is  inherent  in  it.  This  right  draws  with  it  the  power 
of  deciding  upon  the  proceedings  of  towns,  without  reference  to  the 
opinion  or  judgment  of  any  other  body  even  in  a  like  case.  This 
Convention  is  a  distinct  and  independent  tribunal  ;  it  neither  gives 
nor  takes  precedents.  It  is  not  bound  by  the  judgment  of  the  house 
of  representatives  of  the  state,  upon  any  facts  relating  to  the  conduct 
of  town  officers.  If  therefore  a  case  could  be  brought  from  the 
journals  of  the  house  of  representatives,  resembling  this,  I  should 
not  feel  obliged  to  take  it  as  a  precedent.  But  if  this  Convention 
were  thus  concluded,  no  such  case  has  been  produced.  The  two 
cases  cited  by  the  honorable  gentleman  from  Boston,  stand  on  very 
different  ground.  In  the  Roxbury  case,  the  motion  to  limit  the 
number  was  made  before  the  balloting  began,  and  the  house  of  rep- 
resentatives rightly  decided  that  the  selectmen  were  bound  to  put 
that  vote.  This  was  substantially  the  Boston  case,  and  was  for  the 
same  reasons  decided  in  the  same  way.  But  what  are  the  facts  in 
the  case  now  before  the  Convention  ?  The  town  was  duly  convened, 
and  a  motion  was  first  made  and  carried,  that  six  delegates  should 
be  elected  to  the  Convention.  Upon  the  first  balloting  five  only 
were  chosen,  and  a  motion  was  then  made  and  seconded  that  the 
former  vote  to  elect  six  should  be  reconsidered,  and  that  no  more 
than  five  should  be  elected.  The  selectmen  refused  to  put  this  vote, 
and  upon  this  fact  the  remonstrance  is  founded.  I  agree  with  the 
honorable  gentleman  from  Boston,  that  the  right  in  question  is  a 
corporate  right,  but  in  this  case,  the  corporation  had  acted  as  such, 
before  the  motion  was  made.  The  town  in  its  corporate  capacity 
had  a  right  to  determine  the  number  of  delegates  it  would  send  to 
the  Convention ;  and  it  was  in  the  power  of  any  person  to  make  q, 
motion  for  that  purpose,  and  his  undoubted  right  to  have  it  put  by 
the  selectmen.  Such  a  motion  was  first  made — the  town  acted  upon 
it  as  a  corporation,  and  determined  the  number  it  would  send.     That 


62  MASSACHUSETTS    CONVENTION. 

being  done,  the  corporation  was  functus  officio,  and  the  individual 
corporators  were  called  upon  to  give  in  their  votes.  The  effect  of 
the  motion,  therefore,  was  to  reorganize- the  corporation  for  the  pur- 
pose of  voting  again  upon  a  question  which  they  had  once  deter- 
mined— of  undoing  what  they  had  already  done.  In  this  case,  I 
apprehend  the  selectmen  might  well  doubt :  and  if  in  a  doubtful 
case  they  even  decided  wrong,  I  do  not  think,  that  such  an  error  of 
judgment  ought  to  prejudice  the  right  of  the  sitting  member  to  his 
seat.  In  all  cases  of  mistake  or  error,  I  am  persuaded  this  Conven- 
tion will  not  adopt  narrow  rules  of  construction.  If  the  proceedings 
appear  to  have  been  open  and  fair,  free  from  management  or  fraud, 
they  will  be  inclined  to  decide  in  favor  of  privilege.  In  the  present 
case,  I  am  not  embarrassed  with  any  difficulty.  No  precedent  has 
yet  been  cited  from  the  practice  of  the  house  of  representatives, 
which  is  against  the  right  of  the  sitting  member  ;  and  if  we  were 
bound  by  the  same  rules  that  that  body  is,  he  might  still,  upon  the 
facts  before  us,  retain  his  seat.  But  this  Convention,  sir,  will  I  trust, 
exercise  its  own  powers  relative  to  the  elections  and  returns  of  its 
own  members  independently,  as  well  as  equitably  and  liberally.  In 
the  case  of  the  Plymouth  election  yesterday,  it  manifested  such  a 
disposition ;  and  I  do  hope  that  the  same  liberal  spirit  will  prevail, 
and  that  the  report  of  the  committee  will  be  accepted. 

Mr.  Thompson  of  Charlestown  said  that  having  been  present, 
and  having  presided  at  the  town  meeting  in  Charlestown,  he  would 
endeavor  to  state  the  facts  in  relation  to  it,  as  they  were  not  all  con- 
tained in  the  report  of  the  committee.  At  the  opening  of  the  meet- 
ing a  vote  passed  unanimously  to  send  six  delegates.  After  the 
declaration  of  the  votes,  Mr.  Walker  made  his  motion,  and  at  the 
same  time  another  motion  was  made  to  open  the  poll  for  the  sixth 
delegate.  The  selectmen  thought  it  not  fair  to  proceed  any  further 
that  day  and  offered  to  adjourn  the  meeting  in  order  that  all  the 
voters  might  have  notice  of  the  state  of  the  election.  This  offer 
was  negatived,  and  after  consultation,  the  selectmen  concluded  to 
open  the  poll ;  upon  which  all  clamor  ceased.  The  poll  was  closed 
at  8  o'clock,  when  it  appeared  that  the  whole  number  of  votes  given 
in  was  408,  of  which  the  sitting  member  had  210.  More  votes  were 
given  in  at  this  balloting  than  at  the  former  one,  when  the  five  del- 
egates were  chosen. 

Mr.  Austin  of  Boston  said  that  the  report  was  satisfactory  to  him, 
but  the  statement  of  the  gentleman  who  last  spoke  gave  him  addi- 
tional pleasure.  He  said  the  Convention  was  not  to  be  trammelled 
by  precedents  in  the  house  of  representatives.  There  were  two 
questions  for  them  to  decide  in  this  case.  First,  whether  the  motion 
to  reconsider,  made  in  the  town  meeting,  was  in  order ;  in  the  next 
place,  whether  an  error  of  judgment,  for  there  was  no  pretence  of 
fraud  in  the  selectmen,  should  operate  to  vacate  the  seat  of  the  del- 
egate returned.  As  to  the  first  question,  he  was  of  opinion  that  the 
motion  was  not  in  order.  For  what  would  be  the  consequences  ? 
The  whole  corporate  right  must  have  been  open  if  it  was  open  in 


MASSACHUSETTS    CONVENTION.  63 

part ;  if  the  meeting  could  reconsider  a  part  of  their  proceedings, 
there  was  nothing  to  prevent  their  reconsidering  the  whole.  Con- 
sequently, a  small  number  of  the  inhabitants  remaining  at  the  end 
of  the  meeting  might  reconsider  all  that  had  been  done,  and  set  aside 
the  whole  election.  The  House  had  had  experience  that  the  subject 
of  reconsideration  was  one  of  great  difficulty.  There  was  no  evi- 
dence before  the  House  that  the  town  of  Charlestown  had  any  by- 
law allowing  a  reconsideration  in  any  case,  and  he  apprehended  that 
where  there  was  no  rule  of  that  kind,  a  motion  to  reconsider  would 
be  out  of  order.  The  selectmen  had  their  doubts  on  the  subject 
and  wished  for  delay,  but  were  prevented  by  the  impatience  of  the 
meeting.  On  the  supposition  however  that  the  motion  was  in  order 
and  that  the  selectmen  were  wrong  in  their  decision,  as  it  was  but 
an  error  of  judgment,  and  as  the  whole  town  had  expressed  a  wish 
to  be  represented  by  six  delegates,  it  would  be  a  high-handed  act 
for  this  Convention  to  disfranchise  them.  He  hoped  therefore  that 
the  sitting  member  would  be  allowed  to  retain  his  seat. 

Mr.  Blake  of  Boston  said  there  was  much  force  in  the  remark 
made  by  the  two  gentlemen  from  Boston,  that  this  House  was  not 
bound  by  precedents  in  the  house  of  representatives ;  it  was  not 
however  necessary  to  resort  to  this  ground.  If  the  law  for  calling 
the  Convention  and  those  to  which  its  provisions  refer  were  examined, 
it  would  be  found  that  the  proceedings  of  the  selectmen  were  correct. 
He  defied  any  member  to  point  his  finger  to  a  law  requiring  every 
motion  to  be  put  which  is  made  in  town  meeting.  There  had  been, 
to  be  sure,  much  liberality  in  towns  in  respect  to  reconsideration — 
more  perhaps  than  there  ought  to  be  ;  but  the  vote  first  passed  in 
this  case  was  of  such  a  nature  that  it  was  incompetent  to  the  town 
to  reconsider  it,  and  as  the  gentleman  from  Boston  remarked,  they 
might  as  well  have  moved  to  reverse  the  whole  proceedings  of  the 
meeting.  If  the  Convention  however  is  bound  by  the  decisions  in 
the  house  of  representatives,  unless  better  precedents  can  be  pro- 
duced than  the  Boston  and  Roxbury  cases,  they  were  bound  to 
confirm  this  election  ;  but  even  if  this  admitted  of  any' doubt,  he  felt 
assured  from  the  liberality  shown  yesterday,  that  the  sitting  member 
would  be  confirmed  in  his  seat. 

Question  called  for. 

Mr.  Austin  of  Charlestown  said  that  as  there  was  but  little  oppo- 
sition to  the  report,  after  so  many  arguments  in  favor  of  accepting 
it,  he  should  consider  it  indecorous  in  him  to  rise,  except  to  call  for 
the  question. 

Mr.  Phillips  rose  to  reply  to  the  arguments  advanced  by  gentle- 
men in  favor  of  the  report.  It  had  been  affirmed,  he  said,  that  this 
Convention  was  not  bound  by  the  precedents  of  the  house  of 
representatives,  nor  the  house  of  representatives  by  those  of  the 
Convention.  This  was  true.  But  he  thought  the  deliberate  decision 
of  that  body,  (the  H.  of  R.)  on  laws  which  were  applicable  equally 
to  the  choice  of  representatives  and  of  delegates,  were  entitled  to 
much  weight — and  that  he  was  not  beat  down  as  yet,  by  the  remarks 


64  MASSACHUSETTS    CONVENTION. 

of  gentlemen  opposed  to  him  on  this  subject.  Again,  it  was  urged 
that  they  ought  to  show  liberality — that  they  ought  not  to  disfran- 
chise a  town  for  an  error  of  the  selectmen.  This  was  begging  the 
question.  The  town  might  have  voted,  had  the  question  for  recon- 
sideration been  taken,  not  to  send  a  sixth  delegate.  If  that  were  in 
fact  the  wish  of  the  town,  then,  by  permitting  the  sitting  member 
to  retain  his  seat,  they  were  disfranchising  the  town.  That  he  could 
sound  this  argument  with  as  much  force  as  his  opponents.  It  was 
said,  too,  that  the  inhabitants  of  Charlestown  were  desirous  of 
sending  their  whole  number,  and  voted  to  that  effect,  and  then  went 
home  not  so  much  caring  who  should  be  chosen.  Was  it  possible 
that  they  were  so  indifferent  ?  it  could  not  be  true.  Gentlemen  had 
argued  that  a  motion  for  reconsideration  was  not  in  order.  This 
was  not  the  case.  The  conduct  of  these  very  selectmen  was 
contrary  to  this  position.  A  vote  had  passed  that  the  poll  should 
be  closed — how  then  could  it  be  opened  again?  Here  was  a 
reconsideration.  His  opponents  were  on  the  horns  of  a  dilemma. 
Either  the  selectmen  were  bound  to  put  the  motion  to  reconsider, 
and  then  the  refusal  was  wrong,  or  they  should  have  refused  to  open 
the  poll,  a  second  time,  and  then  they  were  wrong.  Mr.  Phillips 
thought  that  gentlemen  did  not  attach  sufficient  importance  to  this 
case.  The  decision  of  the  Convention  indeed  would  not  be  a  pre- 
cedent binding  on  the  house  of  representatives,  but  coming  from 
an  assembly  of  so  much  learning  and  talents,  it  would  undoubtedly 
have  great  weight  in  giving  a  construction  to  the  laws  of  elections. 
He  concluded  by  saying  it  was  his  opinion,  that  the  sitting  member 
had  no  right  to  his  seat,  and  that  the  town  of  Charlestown  would 
be  disfranchised  if  he  were  allowed  to  retain  it. 

Mr.  L.  Lincoln  of  Worcester  said  the  town  of  Charlestown  had 
already  settled  the  question  now  before  the  House.  That,  sup- 
posing the  motion  to  reconsider  were  in  order,  it  was  waived  by  the 
remonstrants  proceeding  to  vote  after  the  re-opening  of  the  poll. 
Supposing  Mr.  Walker's  candidate  had  been  elected.  Could  he  then 
have  remonstrated  because  his  motion  was  not  put?  Mr.  L.  appre- 
hended that  his  putting  in  a  vote,  to  use  a  law  term,  would  have 
been  an  estoppel. 

Mr.  Thompson  of  Charlestown  said  the  gentleman  had  misunder- 
stood him ;  he  had  not  said  that  the  remonstrants  voted. 

Mr.  Lincoln  replied  that  he  understood  him  correctly  at  first,  and 
said  that  it  was  incumbent  on  the  remonstrants  to  have  shown  that 
they  withdrew  from  the  meeting  without  voting. 

Mr.  Dana  said  it  was  due  to  himself,  to  answer  the  remarks  of 
the  gentleman  from  Hadley,  (Mr.  W.  Porter)  which  imported  an 
insinuation,  not  intended  he  presumed,  of  unfairness  in  the  repre- 
sentation, he  (Mr.  D.)  had  made,  respecting  the  sentiments  of  the 
committee  on  elections.  He  knew  that  at  a  meeting  of  the  com- 
mittee, four  gentlemen  had  expressed  an  opinion  that  the  seat  of  the 
gentleman  from  Charlestown  ought  to  be  vacated.  But  nothing  was 
then  determined  upon,  and  it  was  intended  there  should  be  another 


MASSACHUSETTS    CONVENTION.  65 

meeting  of  the  committee,  to  agree  upon  a  report ;  another  meeting 
was  held  accordingly,  at  which  the  facts  were  as  he  had  before  stated. 

The  question  was  then  taken  whether  Mr.  Parker  should  retain 
his  seat,  and  decided  in  the  affirmative. 

Mr.  Hubbard  of  Boston  moved  that  the  committee  on  the  9th 
resolution,  who  have  in  charge  the  article  relating  to  Harvard  Uni- 
versity, and  the  encouragement  of  learning,  be  instructed  to  inquire 
into  the  expediency  of  providing  by  an  amendment  of  the  consti- 
tution, for  appropriating  the  lands  in  the  State  of  Maine,  belonging 
to  the  Commonwealth,  and  the  proceeds  of  the  sales  of  the  same, 
to  the  establishment  of  a  permanent  fund  for  the  support  of  public 
schools.     The  resolution  was  adopted. 

Mr.  Hubbard,  with  a  view  of  preventing  unnecessary  delay, 
moved  that  the  chairmen  of  the  several  committees  on  the  different 
parts  of  the  constitution,  be  instructed  to  have  their  reports  printed 
before  they  are  submitted  to  the  House. 

Mr.  Qaiincy  opposed  the  motion.  He  said  it  was  an  unusual  and 
irregular  course  of  proceeding. 

It*was  passed  m  the  negative. 

Mr.  Draper  of  Spencer  moved  that  a  committee  be  appointed  to 
consider  and  report  what  compensation  ought  to  be  made  to  the 
Secretary,  Messenger,  and  other  officers  of  the  Convention,  and  to 
receive  and  report  on  the  accounts  for  printing,  stationery,  and  other 
incidental  expenses  of  this  Convention. 

The  motion  was  agreed  to,  and  Messrs.  Draper  of  Spencer,  Val- 
entine of  Hopkinton,  Paige  of  Hardwick,  Farwell  of  Cambridge,  and 
Walter  of  Boston,  were  appointed. 

After  which  the  House  adjourned. 


Wednesday,  November  22. 

The  House  was  called  to  order  at  10  o'clock,  and  attended  prayers 
made  by  the  Rev.  Mr.  Jenks,  Chaplain  of  the  House  of  Representa- 
tives. 

The  journal  of  yesterday  was  then  read. 

Mr.  Paige  of  Hardwick  was  excused  from  serving  on  the  com- 
mittee of  accounts,  and  Mr.  Bugbee  of  Wrentham  appointed  in  his 
place. 

Mr.  E.  Mudge  of  Lynn  offered  the  following  resolution,  which 
was  adopted : 

Resolved,  That  the  fourth  committee,  to  whom  was  referred  so  much  of  the  consti- 
tution as  is  contained  in  the  first  section  of  the  second  chapter  of  the  second  part, 
and  respects  the  governor  and  militia,  &c,  be  directed  to  take  into  consideration  the 
propriety  and  expediency  of  making  any,  and  if  any,  what  alterations  and  amend- 
ments therein,  so  as  to  give  relief  to  such  persons  as  have  religious  scruples  about 
bearing  arms. 

Mr.  Q,uincy  of  Boston  presented  the  following  report : 

The  committee  Ito  whom  was  referred  so  much  of  the  constitution  of  this  Com- 
9 


66  MASSACHUSETTS    CONVENTION. 

monwealth  as  is  contained  in  the  fifth  chapter  of  the  second  part,  and  respects  the 
University  of  Cambridge,  and  the  encouragement  of  literature,  and  who  were  directed 
to  take  into  consideration  the  expediency  of  making  any,  and  if  any,  what  alterations 
or  amendments  therein ; — and  who  were  also  directed,  by  a  resolution  passed  on  the 
21st  instant,  to  take  into  consideration  the  expediency  of  providing,  by  way  of 
amendment  to  the  constitution,  for  the  creation  of  a  permanent  fund,  for  the  support 
of  public  schools,  by  appropriating  for  that  object  the  lands  owned  by  the  Common- 
wealth within  the  State  of  Maine,  and  the  proceeds  thereof; — having  attended  to  the 
respective  subjects  referred  to  them,  ask  leave  to  report  the  following  resolutions,  for 
the  consideration  and  adoption  of  the  Convention. 

By  order  of  the  Committee,  JOSIAH  QUINCY,  Chairman. 

Resolved,  That  it  is  inexpedient  to  make  any  alteration  or  amendment  whatsoever, 
in  the  fifth  chapter  of  the  second  part  of  the  constitution  of  this  Commonwealth. 

Resolved,  That  it  is  inexpedient  to  provide  by  way  of  amendment  in  the  constitu- 
tion of  this  Commonwealth,  for  the  creation  of  a  permanent  fund  for  the  support  of 
public  schools,  by  appropriating  for  that  object  the  lands  owned  by  this  Commonwealth 
within  the  State  of  Maine,  and  the  proceeds  thereof. 

Mr.  Bangs  of  Worcester  offered  the  following  resolution,  which 
was  adopted : 

Resolved,  That  the  committee  on  so  much  of  the  constitution  as  is  contained  in 
the  first  section  of  the  second  chapter  of  the  second  part,  and  respects  the  governor, 
militia,  &c,  be  instructed  to  take  into  consideration  the  expediency  of  so  amending 
the  tenth  article  of  said  second  chapter,  as  that  in  future  the  captains  and  subalterns 
of  the  militia,  shall  be  elected  by  the  written  votes  of  the  train  band  and  alarm  list 
of  their  respective  companies,  without  regard  to  age. 

Mr.  Dana  of  Groton  presented  the  following  report : 

The  committee  of  the  Convention  who  were  appointed  to  take  into  considera- 
tion the  propriety  and  [expediency  of  making  any,  and  if  any,  what  alterations  or 
amendments,  in  that  part  of  the  constitution  which  is  contained  in  the  first  section 
of  the  first  chapter  of  the  second  part  thereof,  and  respects  the  General  Court, 
have  at  several  times  had  the  said  section  under  deliberate  consideration,  and  hav- 
ing given  to  the  subject  all  the  attention  its  importance  seemed  to  merit,  they  ask 
leave  to  report : — That  a  Legislative  department  formed  by  two  branches — a  senate 
and  house  of  representatives,  each  having  a  negative  upon  the  other — is  the  most 
congenial  to  the  interests,  habits,  and  manners  of  this  people,  as  well  as  most  con- 
formable to  approved  axioms  of  policy ;  and  that  any  alteration  in  the  formation  of 
this  department  is  wholly  unnecessary,  and  would  be  highly  inexpedient. 

That  the  transfer  of  many  of  the  principal  subjects  of  legislation  contemplated  in 
the  constitution,  to  the  Congress  of  the  United  States  since  the  adoption  of.the  federal 
constitution,  and  the  separation  of  that  portion  of  the  Commonwealth  known  as  the 
District  of  Maine,  and  the  election  of  it  into  a  new  state,  have  so  far  decreased  the 
objects  of  legislative  power,  that  (in  the  opinion  of  this  committee)  only  one  session 
of  the  Legislature  will  hereafter  be  necessary,  unless  upon  some  great  emergency, 
pr  unusual  occurrence,  and  in  order  that  two  sessions  may  not  be  necessary,  a  differ- 
ent and  more  convenient  time  ought  to  be  fixed  for  the  meeting  of  the  Legislature, 
and  settling  the  elections  by  the  General  Court,  than  the  one  which  is  prescribed  by 
the  constitution. 

That  the  article  which  prescribes  the  time  in  which  any  bill  or  resolve  of  the  senate 
or  house  of  representatives  shall  be  returned,  when  the  governor  shall  withhold 
his  approbation,  has  given  rise  to  some  doubts,  which  ought  to  be  removed  by  a  more 
explicit  phraseology. 

Your  committee  have  reviewed  the  powers  which  the  people  conferred  upon  their 
Legislature  when  they  adopted  the  constitution,  and  find  that  for  a  series  of  forty 
years,  the  General  Court  have  annually  been  employed  in  redressing  grievances, 
amending  and  strengthening  the  laws,  and  in  enacting  new  ones,  as  the  common 
good  required,  and  that  during  this  long  period  no  defect  of  power  has  been  dis- 
covered, by  which  the  representatives  of  the  people  have  been  restrained  from  mak- 
ing all  such  regulations  as  are  calculated  to  promote  the  public  safety  and  happiness, 
nor  has  this  department  been  found  to  possess  any  excess  of  power,  which  requires 


MASSACHUSETTS    CONVENTION.  67 

farther  restriction,  nor  have  this  committee  been  able  to  discern  that  any  attempt  at  a 
more  perfect  enumeration  or  precise  definition  of  the  powers  of  the  Legislature,  can 
be  usefully  made,  and  that  it  is  not  expedient  to  make  any  alteration  in  the  third  and 
fourth  articles  of  this  section. 

Revenue,  being  essential  to  the  preservation  and  maintenance  of  all  governments, 
a  wise  republic  will  take  care  that  the  necessary  contributions  should  always  be 
drawn  from  the  people  in  a  manner  the  most  fair  and  equal,  which  their  situation  and 
circumstances  will  permit.  The  regulations  prescribed  in  the  powers  given  to  the 
General  Court  for  this  object,  were  in  use  in  the  late  province  of  Massachusetts  Bay, 
and  were  practised  upon,  before  the  formation  of  the  present  constitution.  Since 
that  period  many  states  have  formed  constitutions — new  republics  have  sprung  up, 
the  skill  and  ingenuity  of  financiers  have  often  been  put  in  requisition  to  devise  modes 
of  drawing  contributions  from  citizens  and  subjects.  Your  committee  have  compared 
the  provisions  of  our  constitution  with  such  others  as  their  opportunities  have  enabled 
them  to,  and  are  of  opinion  that  it  will  not  be  expedient  for  the  people  of  Massachu- 
setts to  exchange  their  system,  which  has  been  sanctioned  by  such  long  experience, 
for  any  other  mode. 

After  a  careful  examination  and  an  attentive  pemsal  of  that  portion  of  the' consti- 
tution which  this  committee  has  been  charged  to  review,  they  have  unanimously 
agreed  to  offer  only  the  following  resolutions  for  the  adoption  by  the  convention. 
Which  are  submitted  for  the  committee, 

SAMUEL  DANA,  Chairman. 

Resolved,  That  the  constitution  ought  to  be  altered  so  as  to  change  the  time  at 
which  the  legislative  body  shall  assemble  every  year,  from  the  last  Wednesday  of 
May  to  the  first  Wednesday  of  January. 

Resolved,  That  the  constitution  ought  to  be  amended  so  as  to  render  more  certain 
the  time  in  which  the  governor  shall  return  any  bill  or  resolve  to  which  he  may  refuse 
his  approbation,  by  adding  to  the  second  article  of  the  first  section,  these  words, 
"  unless  the  General  Court  by  their  adjournment  shall  prevent  its  return,  in  which 
case  it  shall  not  be  a  law." 

On  motion  of  Mr.  Abbott  of  Westford,  it  was  ordered  that  when 
the  House  adjourned,  it  should  adjourn  to  Friday  next  at  11  o'clock 
A.  M. 

On  motion  of  Mr.  D.  Webster  of  Boston,  the  reports  presented 
by  Messrs  Quincy  and  Dana  were  committed  to  a  committee  of  the 
whole  Convention  and  made  the  order  of  the  day  for  Friday  next  at 
11  o'clock  A.  M. 

The  reports  were  in  the  mean  time  ordered  to  be  printed  for  the 
use  of  the  members. 

The  House  then  adjourned. 


Friday,  November  24. 

The  Convention  came  to  order  at  11  o'clock,  and  attended  pray- 
ers, offered  by  the  Rev.  Mr.  Palfrey. 

The  journal  of  Wednesday  being  read,  Mr.  Welles,  from  the 
committee  to  whom  was  referred  the  consideration  of  so  much  of 
the  constitution  as  is  contained  in  the  4th  chapter  and  second  part, 
respecting  delegates  to  Congress,  made  the  following  report : 

"  The  committee  to  whom  was  referred  "so  much  of  the  constitution  of  this  Com- 
monwealth as  is  contained  in  the  fourth  chapter  of  the  second  part  respecting  dele- 
gates to  Congress — and  the  propriety  and  expediency  of  making  any  alterations  and 
amendments  therein," 

Report,  that  by  recurrence  to  dates  and  facts  it  will  appear,  that  when  the  consti- 
tution of  Massachusetts  was  adopted  in  one  thousand  seven  hundred  and  eighty,  it 


68  MASSACHUSETTS    CONVENTION. 

became  a  duty  in  the  convention  then  assembled  to  provide  for  the  choice  of  delegates 
of  the  Commonwealth  to  the  Congress  of  the  United  States  agreeably  to  the  system 
of  confederation  then  subsisting. 

For  which  reason  it  was  in  this  fourth  chapter  provided,  that  the  delegates 
should  be  chosen  in  the  month  of  June  annually  by  a  joint  ballot  of  the  senate  and 
house  of  representatives.  Their  mode  of  commission,  of  recal,  and  of  a  new  choice 
were  all  with  propriety  therefore  in  this  article  provided  for. 

But  the  constitution  of  the  United  States  having  since  been  adopted  by  the  people, 
and  it  having  become  the  supreme  law  of  the  land,  this  article  has  been  thereby  vir- 
tually superseded  or  repealed,  and  has  not  since  had  any  effect  in  the  constitution  of 
this  Commonwealth. 

Under  these  circumstances  your  committee  consider  that  the  said  fourth  chapter 
of  the  second  part  as  respects  delegates  to  Congress  is  inapplicable  to  the  existing 
condition  of  the  state  of  Massachusetts,  as  well  as  to  that  of  the  constitution  of  the 
United  States.  The  committee  therefore  recommend  the  adoption  of  the  following 
resolution : 

Resolved,  That  the  fourth  chapter  of  the  second  part  of  the  constitution  of  this  Com- 
monwealth, having  become  inapplicable  to  the  existing  condition  of  the  state  of  Mas- 
sachusetts, ought  to  be  expunged  therefrom. 

All  which  is  submitted.     Per  order  of  the  committee. 

JOHN  WELLES,  Chairman." 

On  motion  of  Mr.  Welles,  the  report  was  referred  to  the  com- 
mittee of  the  whole  and  made  the  order  of  the  day  for  tomorrow  at 
10  o'clock. 

Mr.  Austin  of  Charlestown  submitted  the  following  resolution, 
which  being  read  from  the  chair  was  adopted : 

That  the  committee  under  the  third  resolution  who  have  under  consideration  the 
part  of  the  constitution  relating  to  the  senate  and  house  of  representatives,  be  in- 
structed to  consider  the  expediency  of  so  altering  the  constitution  as  to  provide  that 
the  governor  and  lieut.  governor,  senators,  representatives,  and  electors  of  president 
and  vice  president  and  representatives  in  Congress  on  the  years  when  they  are  to  be 
chosen,  and  town  and  county  officers,  be  all  chosen  on  the  first  Monday  in  April,  or  on 
the day  of to  begin  with  town  officers,  and  to  proceed  with  the  others  in  order. 

Mr.  Ward  of  Boston,  from  the  committee  on  that  part  of  the  con- 
stitution embraced  in  the  sixth  resolution,  made  the  following  report : 

Commonwealth  of  Massachusetts, 

In  Convention,  November  24,  1820. 

The  committee  to  whom  was  committed  by  the  sixth  resolution  passed  in  this  con- 
vention, so  much  of  the  constitution  of  this  Commonwealth  as  is  contained  in  the 
fourth  section  of  the  second  chapter  of  the  second  part,  and  relates  to  the  secretary, 
treasurer  and  receiver  general,  and  the  commissary  general,  notaries  public,  and 
naval  officers,  with  directions  to  take  into  consideration  the  propriety  and  expediency 
of  making  any,  and  if  any  what  alterations  therein,  have  attended  to  the  duty  assigned 
them,  and  respectfully  ask  leave  to  report, 

That,  notwithstanding  they  are  very  strongly  impressed  that  no  part  of  the  form  of 
government  under  which  we  have  lived  so  happily  for  forty  years,  and  enjoyed  all  the 
blessings  of  civil  and  religious  liberty  and  freedom,  and  which  has  received  a  prac- 
tical and  judicial  construction,  and  is  now  well  understood,  ought  to  be  altered  for 
light  reasons,  yet,  inasmuch  as  the  jurisdiction  over  impost  and  tonnage  duties,  by  the 
constitution  of  the  United  States,  is  transferred  to  the  government  of  the  United 
States,  and  this  Commonwealth,  as  an  individual  state  of  the  Union,  ceases  to  have 
any  jurisdiction  over  imposts,  export  and  tonnage  duties,  excepting  the  qualified  one 
mentioned  in  the  constitution  of  the  United  States,  your  committee  are  of  opinion  that 
the  provision  for  the  election  of  a  naval  officer  in  the  section  committed  to  them  is 
wholly  superfluous  and  ought  to  be  expunged. 

In  relation  to  the  choice  of  notaries  public,  your  committee  are  aware  that  their 
office  is  an  important  one  ;  one  in  the  faithful  and  impartial  execution  of  which,  not 
only  the  citizens  of  the  United  States  but  foreigners  have  a  deep  interest,  and  that 
they  ought  to  receive  their  appointment  from  the  Supreme  Executive,  or  legislative 


MASSACHUSETTS    CONVENTION.  69 

power  of  the  Commonwealth.  And,  after  due  deliberation  upon  this  subject,  your 
committee  are  of  opinion  that  the  election  of  notaries  public,  by  the  two  branches  of  the 
Legislature,  as  provided  by  the  section  aforesaid,  is  attended  with  much  expense, 
and  unnecessary  delay  of  legislative  business,  and  cannot  be  executed,  as  well,  by 
that  department  of  the  government,  as  by  the  Supreme  Executive.  Your  committee 
therefore  report  the  following  Resolve.  ARTEMAS  WARD,  Chairman. 

Resolved,  That  it  is  expedient  to  alter  and  amend  the  constitution  of  this  Common- 
wealth, by  striking  out  the  words  "  notaries  public  and  naval  officers,"  in  the  first 
article  of  the  fourth  section,  of  the  second  chapter,  of  the  second  part. 

On  motion  of  Mr.  Quincy,  the  House  resolved  itself  into  a  committee  of  the  whole 
on  the  report  of  the  committee  on  that  part  of  the  constitution  relating  to  the  Univer- 
sity of  Cambridge  and  the  encouragement  of  literature,  submitted  on  Wednesday, 
and  made  the  order  of  this  day,  the  Hon.  Mr.  Varnum  of  Dracut,  in  the  chair.  The 
report  being  read,  on  motion  of  Mr.  Quincy,  the  first  resolution  offered  by  the  com- 
mittee was  taken  into  consideration,  viz. : 

Resolved,  That  it  is  inexpedient  to  make  any  alteration  or  amendment  whatsoever 
in  the  fifth  chapter  of  the  second  part  of  the  constitution  of  this  Commonwealth. 

Mr.  Quincy  said  that  on  general  parliamentary  principles  it  would 
be  proper  for  him,  as  chairman  of  the  committee  which  reported  the 
resolutions,  to  go  into  a  general  consideration  of  the  reasons  which 
induced  them  to  make  the  report,  but  as  they  did  not  propose  to  make 
any  alteration  of  their  part  of  the  constitution  the  provisions  of  which 
were  well  understood,  he  should  refrain  from  making  any  observa- 
tions in  support  of  this  resolution,  unless  he  should  be  called  upon  to 
make  some  explanation,  or  the  adoption  of  it  should  be  opposed.  Con- 
sidering that  the  encouragement  of  literature  as  already  amply  pro- 
vided for  in  the  constitution,  and  considering  that  the  unexampled 
prosperity  of  Harvard  College  furnished  the  most  satisfactory  proof 
that  no  provision  in  relation  to  that  institution  was  necessary,  he  was 
desirous  to  give  an  example,  which  he  hoped  would  be  followed  in 
other  cases,  of  a  disposition  to  indulge  in  as  little  debate  as  possible, 
and  he  waived  the  right  of  saying  anything  in  support  of  the  reso- 
lution. 

Mr.  Richardson  of  Hingham.  Mr.  Chairman,  I  rise  to  offer  my 
reasons  for  not  accepting  the  report  of  the  committee  now  laid  on 
your  table,  which  proposes  no  alteration  or  amendment  as  respects 
the  University  at  Cambridge,  and  the  encouragement  of  literature, 
&c.  Sir,  I  would  not  derogate  from  the  respect  due  to  the  com- 
mittee who  have  thus  reported ;  but,  sir,  I  should  violate  my  own 
sense  of  duty  and  obligations  to  my  constituents,  if  I  should  vote  to 
accept  this  report,  as  it  relates  to  the  3d  art.  of  the  1st  sec.  of  the 
5th  chap.,  where  it  is  declared  that  the  governor,  lieut.  governor, 
councillors  and  senators  of  this  Commonwealth,  with  the  President 
of  Harvard  College,  together  with  the  Ministers  of  the  Congrega- 
tional churches  in  the  towns  of  Cambridge,  &c,  shall  be,  and  hereby 
are,  vested  with  all  the  powers  and  authority  belonging,  or  in  any 
way  appertaining,  to  the  overseers  of  Harvard  College.  Sir,  this 
constitution,  by  this  provision,  bestows  exclusive  honors  and  privi- 
leges upon  ministers  of  Congregational  churches,  which  provision, 
in  my  opinion,  is  directly  repugnant  to  that  clause  in  the  Declaration 
of  Rights,  which  declares,  that  no  subordination  of  any  one  sect  or 


70  MASSACHUSETTS    CONVENTION. 

denomination  to  another,  shall  ever  be  established  by  law.     By  the 
provision  cited,  all  other  denominations  except  Congregationalists, 
are  excluded  from  -a  very  honorable  public  trust.     It  is  not  simply 
from  a  trust  reposed  by  the  University,  but  from  a  high  trust  re- 
posed by  this  Commonwealth.     Sir,  what  reason,  I  would  ask,  can 
gentlemen  give  for  this  preference,  granted  to  ministers  of  one  de- 
nomination.    I,  sir,  profess  a  strong  attachment  to  the  Congrega- 
tional denomination.     I  am  well  satisfied  with  the  mode  of  worship, 
and  the  discipline  of  this  order  of  christians.     But  this,  in  my  view, 
is  no  reason  why  I  should  be  satisfied  that  our  constitution  of  gov- 
ernment should  draw  lines  of  invidious  distinction  between  the 
different  denominations  of  christians.     This  provision  appears  to  me 
to  place  all  the  other  denominations  of  christians  in  a  degree  of  sub- 
ordination to  one,  as  if  all  others  were  disqualified  for  the  high  trust. 
What  are  the  inferences  naturally  following  such  a  provision  ?     That 
this  State  from  the  first  institution  of  this  government  and  (as  a 
province)  long  before,  has  with  liberal  munificence  fostered  Harvard 
University,  for  the  encouragement  of  arts  and  sciences,  and  all  good 
literature,   (as  expressed  by  the  constitution)  tending  to  the  honor 
of  God,  the  advantage  of  the  christian  religion,  and  the  great  benefit 
of  this  and  the  other  United  States — but  entrusted,  so  far  as  depend- 
ing on  the  care  of  the  ministers  of  religion,  to  one  denomination 
only.     Does  not  the  inference  follow,  from  the  exclusive  words,  or 
rather  from  the  implied  and  actual  exclusion,  that  ministers  of  other 
denominations  are,  in  the  view  of  the  State,  unworthy  to  be  trusted 
with  the  care  of  an  institution  on  which  the  "honor  of  God,  and  the 
advantage  of  christian  religion  depend?"     It  appears  that  all  other 
denominations  are  taxed  with  large  appropriations  to  support  the 
character  and  dignity  of  an  institution,  which,  as  the  constitution 
now  stands,  is  a  sort  of  holy  of  holies,  which  even  the  clergy  of 
other  denominations  are  not  permitted  to  approach  only  in  sub- 
ordination.    Are  there  not  respectable  clergymen  of  other  denomi- 
nations in  the  several  towns  mentioned  (admitting  that  the  board  of 
overseers  must  be  limited  to  these  towns)  who  might  be  safely  per- 
mitted to  share  in  the   management  of  that  University  ?     In  these 
several  towns  there  are  Episcopalians,  Baptists,  Methodists,  Univer- 
salists,  and  perhaps  other  denominations,  who  have  formed  societies 
of  high  reputation,  possessing  great  numbers  and  wealth,  who  have 
long  contributed  in  the  same  proportion  that  others  have  done,  to 
erect  the  numerous  superb  buildings,  to  endow  liberally  the  many 
professorships,  or  at  least  to  aid  them,  and  in  various  ways  to  dignify 
this  renowned  institution.     But  these  denominations  are  all  excluded 
from  the  least  participation  in  that  department  of  trust  assigned  to 
the  ministers  of  religion.     If,   sir,   my  views  of  this  subject  are 
erroneous,  I  hope  to  be  convinced  by  fair  arguments  that  they  are 
so.     But  every  feature  of  a  free  government  that  tends  to  cherish 
and  perpetuate  a  spirit  of  intolerance  among  different  denominations 
of  christians,  is  inconsistent,  in  my  view,  with  liberty,  both  civil 
and  religious.     I  am  constrained  to  view  this  policy  of  preference 


MASSACHUSETTS    CONVENTION.  71 

and  exclusion  as  verging  too  much  towards  a  national  establishment 
of  religion,  and  who  has  been  conversant  in  history,  and  does  not 
admit  that  religious  establishments  on  narrow  principles,  maintained 
by  civil  power  and  authority,  have  not  proved  instruments  of  great 
calamity?  Sir,  I  oppose  the  provision  of  the  constitution  on  an- 
other ground.  This  partiality  to  Congregational  tenets,  in  my  view, 
is  to  render  this  denomination  a  spoiled  child  of  the  State.  I  would, 
however,  rely  principally  on  this  ground  of  argument,  that  any  pro- 
vision in  the  constitution,  vesting  a  particular  class  of  christians 
with  preference  in  honors  and  privileges,  is  contrary  to  the  general 
principles  and  spirit  of  a  free  government.  The  principle  in  which 
such  provision  is  established,  I  am  constrained  not  only  as  a  chris- 
tian, but  as  a  civilian,  to  disapprove,  because  it  not  only  tends  to 
perpetuate  jealousy  between  different  denominations  in  religion,  but 
also  to  produce,  ultimately,  the  evils  of  civil  discord.  Indeed  were  I 
an  enemy  to  the  Congregational  denomination,  I  could  scarcely  devise, 
what  I  should  consider  a  more  effectual  measure  ultimately  to  bring 
it  into  disrepute.  I  am  aware  that  it  may  be  said  that  the  board  of 
overseers  does  not  remain  exactly  as  fixed  by  the  constitution.  In 
1810,  the  Legislature  passed  an  act  providing  that  instead  of  the 
Congregational  ministers  of  the  several  towns  mentioned  in  the 
constitution,  fifteen  ministers  of  Congregational  churches  and  fifteen 
laymen  should  be  elected,  and  forever  thereafter  constitute  the 
board  of  overseers.  It  was  further  provided,  that  the  overseers 
should  elect  this  new  board.  The  new  board  are  empowered  to 
supply  all  vacancies.  If  this  act  was  constitutional,  here  is  a  stand- 
ing board  provided,  for  which,  should  the  senate  and  council  be 
reduced  in  numbers,  as  they  probably  will,  may  constitute  a  ma- 
jority in  the  board  against  the  votes  of  the  members  on  the  part  of 
the  State.  So  that  in  fact,  the  act  may  place  the  University  above 
the  control  of  the  State  government.  Thus  we  shall  have  a  power- 
ful institution,  built  up  by  the  State,  and  independent  of  the  State. 
It  will  also  appear,  that  among  the  ministers  created  members  of 
the  board,  by  this  act,  if  I  mistake  not,  not  one  who  is  not  a  Con- 
gregationalist  is  to  be  found.  If,  sir,  the  constitution  contains  a 
clause  that  can  authorize  a  Legislature  to  place  the  University  out 
of  the  power  and  control  of  the  Commonwealth,  is  it  not  expedient 
that  such  provision  be  stricken  out?  Placing  powerful  institutions, 
even  partly  the  property  of  the  State,  out  of  the  control  of  the  State, 
is  certainly  the  exercise  of  a  prerogative  that  ought  to  be  solemnly 
prohibited  by  the  constitution.  If  this  prerogative  was  deemed  to 
be  authorized  by  the  3d  art.  of  the  1st  sec.  of  the  5th  chap.,  (see 
constitution,)  I  humbly  hope  the  Convention  will  not  permit  that 
part  to  pass  unaltered.  Sir,  I  humbly  hope,  that  this  Convention 
will  never  sanction  any  authority  or  precedent  in  the  constitution 
of  government  to  be  submitted  to  the  people,  that  will  indicate  an 
undue  partiality  toward  any  sect  of  christians.  If  the  constitution 
is  again  laid  before  the  people,  unaltered,  I  am  persuaded  that  they 
will  not  manifest  that  indifference  about  it,  which  seems  to  have 


72  MASSACHUSETTS    CONVENTION. 

been  implied  by  the  small  numbers  who  voted  to  call  this  Conven- 
tion. I  trust  that  this  sentiment  will  be  found  to  prevail  in  this 
Convention,  that  it  is  utterly  incompatible  with  all  the  views  of 
sound  and  liberal  policy,  in  a  free  government,  to  give  preference 
of  honor  or  advantage  to  any  denomination  in  religion,  unless  it  is 
intended  to  prepare  the  way  for  an  amalgamation  of  church  and 
state.  I  hope,  sir,  that  the  constitution,  after  revision,  will  meet 
the  views  of  the  several  denominations  of  christians,  and  all  classes 
of  the  people,  as  the  perfect  equality  of  the  reaped  corn  in  Laconia 
met  the  view  of  Lycurgus.  Passing  by,  turning  to  those  around 
him,  he  said,  smiling,  "  Does  not  Laconia  look  like  the  possession 
of  brothers,  who  have  just  been  dividing  their  inheritance  among 
them?" 

Mr.  CIuincy  said  that  the  views  which  had  been  taken  by  the 
Rev.  gentleman  who  had  just  spoken  did  not  escape  the  attention 
of  the  committee.  It  was  observed,  and  they  regretted  that  this 
exclusive  feature  existed  in  the  constitution.  He  felt  as  fully  as 
that  gentleman  could  the  advantage  which  would  result  to  the 
University  at  Cambridge  from  calling  in  the  aid  of  other  denomina- 
tions to  participate  in  the  government.  He  thought  that  his  general 
principles  were  correct  and  that  on  a  view  of  the  whole  subject, 
reasons  would  be  suggested  which  would  satisfy  that  gentleman 
and  the  Convention  that  the  resolution  must  be  adopted.  The  gen- 
tleman's argument  proceeded  upon  the  principle  that  the  constitu- 
tion made  some  alteration  in  the  charter  of  Harvard  College.  But 
it  was  not  so.  There  was  no  grant  or  gift  of  anything.  The  great 
men  who  formed  the  constitution  of  1780,  knew  how  sacred  pre- 
existing chartered  rights  were.  Mr.  Q.  referred  to  the  article  from 
which  it  had  been  supposed  that  that  convention  altered  the  charter 
of  Harvard  College,  and  contended  that  it  was  not  so.  So  far  from 
exercising  a  power  of  altering  the  charter  of  1642,  they  expressly 
recognize  the  existence  of  the  charter,  and  provide  for  the  exercise 
of  powers  under  it.  There  was  a  necessity  for  making  some  pro- 
vision for  the  failure  of  certain  official  persons  under  the  colonial 
and  provincial  charters  of  government.  The  charter  of  1642,  con- 
stituted the  governor,  deputy  governor  and  magistrates  of  the 
colony,  with  the  president  of  the  college  and  a  certain  number  of 
the  clergy,  the  board  of  overseers.  In  consequence  of  the  revolution 
and  of  the  establishment  of  the  present  constitution,  there  was  no 
deputy  governor  ;  and  the  number  of  magistrates  was  so  far  increased 
that  it  was  impossible  to  determine  who  were  properly  their  proper 
successors.  In  this  state  of  things  there  was  a  necessity  that  it 
should  be  declared  who  should  take  the  place  of  the  persons  so 
designated.  If  it  had  not  been  for  this  necessity  they  would  have 
left  that  charter  as  all  other  charters  ought  to  be  left,  untouched. 
He  read  a  passage  from  the  constitution,  to  show  that  the  Conven- 
tion in  framing  the  article  state  the  necessity  that  existed  as  an 
apology  for  touching  the  chartered  rights  of  the  college.  They  did 
not  take  upon  themselves  the  power  to  take  away  rights  previously 


MASSACHUSETTS    CONVENTION.  73 

granted — they  only  undertook  to  declare  who  shall  be  the  succes- 
sors, under  the  charter,  of  a  body  of  men  who  had  ceased  to  exist, 
and  proceeded  to  give  a  power,  to  those  who  were  declared  the  suc- 
cessors. He  presumed  that  the  Convention  would  follow  the  ex- 
ample that  was  set  us  by  the  convention  of  1780.  They  had  no 
difficulty  in  providing  that  all  the  powers  which  were  then  pos- 
sessed by  the  provincial  legislature,  should  continue  to  be  exercised 
by  the  General  Court  of  the  Commonwealth,  with  the  limitation 
which  before  existed.  The  gentleman  from  Hingham  was  in  an 
error  in  supposing  that  they  exercised  any  power  over  the  charter. 
They  left  the  charter  as  to  all  the  rights  and  privileges  conferred  by 
it,  where  they  found  it. 

But  the  question  arises  whether  the  Legislature  has  the  power  to 
make  alterations  without  the  consent  of  the  corporation.  This 
question  is  to  be  settled  by  the  judiciary.  If  any  alteration  is  made, 
it  must  be  made  by  the  Legislature  with  the  consent  of  the  corpora- 
tion, which  consists  of  gentlemen  of  great  talents  and  great  liber- 
ality ;  and  without  their  consent,  if  the  judiciary  should  declare  they 
possess  the  authority.  He  made  these  remarks  in  reply  to  those 
which  had  been  made  by  the  gentleman  from  Hingham,  and  he 
hoped  they  would  be  satisfactory  to  him  and  to  the  Convention. 

Mr.  Martin  of  Marblehead  moved  to  strikeout  the  word  Con  "re- 
gational  in  the  clause,  "  the  governor,  &c.  together  with  the  minis- 
ters of  the  Congregational  churches,  in  the  towns  of  Cambridge,  &c. 
shall  be  &c.  vested  with  all  the  powers  and  authority  belonging  &c. 
to  the  overseers  of  Harvard  College."  Constitution,  chap.  V,  sect. 
1,  art.  3.  He  said  the  gentleman  from  Hingham  had  not  gone  far 
enough  for  him  in  objecting  to  the  word  congregational  only.  He 
wished  likewise  to  strike  out  rewards  and  immunities  in  chap.  5, 
sec.  2.  He  found  fault  with  the  liberality  of  the  Legislature  in 
granting  one  hundred  and  sixty  thousand  dollars  to  our  colleges ; 
and  this  at  a  time  when  the  State  was  obliged  to  borrow  money  to 
pay  the  representatives.  He  thought  the  sum  ought  to  be  limited, 
beyond  which  the  Legislature  should  not  go.  He  found  fault  too, 
with  the  yeas  and  nays  being  kept  back,  so  that  the  people  could 
not  know  how  their  representatives  voted  on  such  questions.  For- 
merly thirty-one  members  of  the  house  of  representatives  in  favor 
of  calling  the  yeas  and  nays  were  sufficient,  but  now  one  third  of 
the  members  present  were  required. 

The  Chairman  directed  the  gentleman  to  reduce  his  motion  to 
writing. 

Mr.  Qjjincy  said  that  while  the  gentleman  was  reducing  his  mo- 
tion to  writing  he  would  remark  that  the  other  subject  of  this  chap- 
ter of  the  Constitution,  the  encouragement  of  literature,  was  taken 
into  consideration  by  the  committee.  But  they  found  that  object  as 
amply  provided  for  as  could  be  wished.  The  duty  of  the  Legisla- 
ture to  afford  encouragement  to  learning  and  the  liberal  arts,  was 
clearly  and  forcibly  expressed,  and  they  had  occasion  to  admire  the 
wonderful  comprehension  and  forecast  of  the  mind  which  had  dic- 
10 


74  MASSACHUSETTS    CONVENTION. 

tated  this  article.     He  should  say  more,  were  it  not  for  the  presence 
of  the  gentleman  (Mr.  Adams)  by  whom  this  article  was  drafted. 

Mr.  Baldwin  of  Boston  said,  he  wished  to  be  informed  whether 
ministers  of  any  particular  denomination  were  named  in  the  original 
charter  of  the  college.  There  had  been  a  change  in  the  government 
of  the  University  some  years  since,  in  which  the  same  idea  was 
kept  up.  He  was  not  induced  to  speak  on  his  own  account  or  on 
account  of  those  of  his  own  religious  sentiments,  who  were  excluded 
from  the  government  of  the  University,  but  he  thought  that  by  this 
provision  in  the  constitution,  the  college  might  lose  the  assistance  of 
able  and  useful  men  who  were  not  Congregationalists.  He  men- 
tioned that  Mr.  Hollis  made  a  large  donation  to  the  University,  and 
requested  that  a  minister  of  this  town,  of  his  own  persuasion  in  re- 
ligion, might  be  an  overseer,  but  it  was  refused.  If  money  was 
granted  to  the  college  by  Congregationalists  only,  then  it  was  right 
enough  that  it  should  be  governed  solely  by  Congregationalists ;  but 
if  men  of  other  denominations  contributed  to  its  funds,  he  saw  no 
reason  why  they  should  not  share  in  its  government.  He  did  not 
mean  to  say  that  the  government  of  the  University  had  not  been 
well  administered,  nor  that  it  would  not  have  been  equally  well  ad- 
ministered by  persons  of  different  denominations.  If  the  original 
charter  expressed  that  the  portion  of  the  overseers  composed  of  the 
clergy  of  the  six  neighboring  towns  should  be  Congregationalists,  he 
should  wish  to  have  it  confirmed.  He  only  wished  to  know  how 
the  fact  was. 

Mr.  Q,uincy,  in  reply,  said  that  he  would  satisfy  the  gentleman  on 
the  subject  of  his  inquiry.  He  was  happy  to  hear  the  remarks  of 
that  gentleman.  They  were  wise,  honorable,  and  characteristic  of 
him,  and  he  was  sorry  that  the  charter  of  the  college  did  not  permit 
the  board  of  overseers  to  avail  themselves  of  his  talents  and  modera- 
tion. He  read  from  the  charter  of  1642,  a  passage,  in  which  it  is 
ordered  that  the  board  of  overseers  shall  consist  of  the  governor, 
deputy  governor,  magistrates  and  the  teaching  elders  of  six  adjoin- 
ing towns.  The  teaching  elders  of  these  towns  were  ministers  of 
the  Congregational  churches,  and  it  had  always  been  the  exposition 
of  that  charter,  that  it  was  confined  in  its  application  to  the  clergy- 
men of  that  denomination.  In  the  supplementary  charter  of  1650, 
which  contained  a  fuller  exposition  of  the  grants  in  the  first  charter, 
the  corporation  of. the  college  was  made  to  consist  of  the  same  per- 
sons. These  charters  were  acted  upon,  without  any  further  grant 
until  1780.  It  had  been  understood,  up  to  this  day,  as  embracing 
the  Congregational  clergy  only,  and  the  Convention  of  1780  con- 
firmed that  construction. 

Mr.  J.  Davis  of  Boston  observed  that  the  grounds  of  the  report 
of  the  select  committee,  on  the  subject  under  consideration,  had 
been  so  fully  and  clearly  explained  and  enforced,  that  he  should 
only  offer  some  remarks  suggested  by  what  had  been  offered  by  his 
Rev.  colleague,  (Rev.  Dr.  Baldwin.)  That  gentleman,  if  he  under- 
stood him  correctly,  had  candidly  admitted  that  if  he  was  assured 


MASSACHUSETTS    CONVENTION.  75 

that  the  original  charter  of  the  University  was,  in  regard  to  the  cler- 
ical portion  of  the  board  of  overseers,  limited  to  ministers  of  the 
Congregational  denomination,  he  should  not  think  he  ought  to  con- 
tend for  an  alteration.     Nothing,  Mr.  D.  thought,  could  be  plainer, 
than  that  such  was  the  true  intent  and  meaning  of  the  original  as 
well  as   the  confirmatory  charter.     If  there  could  have  been  at  any 
time  any  doubts  on  the  subject,  this  construction  must  be  consid- 
ered as  the  settled  construction,  by  the  language  of  the  article  in  the 
constitution,  now  under  consideration.     If  there  were  originally  any 
thing  doubtful  or  ambiguous  as  to  this  part  of  the  overseers'  board, 
it  was  by  the  constitution,  in  express  terms,  limited  to  the  ministers 
of  the  Congregational  churches  of  the   six  neighboring  towns,  and 
must  so  remain,  unless  an  alteration  should  be  made  pursuant  to  the 
proviso  at  the  close  of  the  article.     If  his  Rev.  colleague   therefore, 
would  feel  himself  restrained  from  attempting  a  change  in  the  pro- 
vision, by  a  constitutional  amendment,  if  he  were  persuaded  that 
the  limitation  was  created  by  the  original  charter,  which  was  by  an 
act    of  the    Colonial  Assembly,  he  ought  certainly  to  be  equally 
restrained  by  the  express  language  of  the  constitution,  in  regard  to 
which  there  was  no  ambiguity,  and  nothing  left  for  construction. 
The  University  therefore  rested  on  chartered  rights,  which  it  could 
not  be  presumed  that  the  Convention  would  in  any  degree  disturb  or 
impair.     The  foundation  of  that  important  Seminary  might  not  in 
this  particular  rest  on  such  broad  foundation,  as  would  be  congenial 
to  the  liberal  spirit  of  the  present  times.     But,  to  render  justice  to 
our  ancestors,  we  must  recur   to  its  foundation.     This  venerable 
institution  was  one  of  the  early  objects  of  their  care.     They  had  a 
strong  persuasion  of  the   great  importance  of  a  learned  ministry. 
Their  institution  was  dedicated  to  "Christ  and  the  Church  " — and 
with  such  views,  the  clerical  part  of  the   board  of  overseers  was 
introduced,  as  the  most  natural  and  efficacious  guardians  and  promo- 
ters of  an  institution  whose  prime  object  was  the  supply  of  the 
country  with  able  and  learned  ministers.     At  that  period  there  were 
no  clergy  in  the  Colony  but  of  the  Congregational  order.     If  the 
present  state  of  the  country  required  a  wider  range  in  the  selection 
of  members  for  the  clerical  part  of  the  board,  it  could  be  effected  by 
law,  if  the  alteration  should  be  consistent  with  the  charter ;  and  if 
not,  the  Convention  would  doubtless  hesitate  in  undertaking  to  affect 
a  chartered  right,  by   a  proposed  amendment  to  the  constitution 
which  could  not  be  affected  by  law.     A  different  organization  of  the 
board  of  overseers  in  this  particular  may  be  desirable.     It  may  be 
hereafter  effected.     In  the  mean  time  it  should  be  remembered  that 
no  injurious  consequences  have  arisen  from  this  construction  of  the 
board  of  overseers.     Uniform  Catholicism  had  been  the  distinguished 
traits  in  the  history  of  the  University,  and  no  instance  of  partiality, 
or  injustice,  from  preference  or  dislike  to  any  religious  sect  or  de- 
nomination, could  be  pointed  out  or  verified.     The  Rev.  gentleman 
had  adverted  to  the  denial  of  a  favorite  wish  of  one  of  its  distin- 
guished benefactors,  Mr.  Hollis,  that  a  clergyman  in  the  town  of 


76  MASSACHUSETTS    CONVENTION. 

Boston,  of  his  religious  persuasion,  should  be  admitted  to  a  share  in 
the  government.  However  this  might  be,  it  was  certain  that  Mr. 
Hollis,  a  man  who  was  an  honor  to  his  country,  and  the  age  in 
which  he  lived,  received  satisfactory  explanations  in  this  particular ; 
so  satisfactory  at  least,  that  he  did  not  withhold  the  bountiful  dona- 
tion which  he  intended.  He  only  requested,  ultimately,  to  have  the 
nomination  of  the  first  Professor  submitted  to  his  approbation.  That 
Professor  was  the  Rev.  Dr.  Wigglesworth,  a  minister  of  the  Congre- 
gational order,  a  choice  which  Mr.  Hollis  approved.  The  corres- 
pondence between  Mr.  Hollis  and  President  Wadsworth  will  evince 
his  entire  satisfaction  with  the  proceedings  on  the  part  of  the  college. 
He  was  assured  with  truth,  that  youth  of  the  Baptist  persuasion 
would  be  cheerfully  received  in  the  Seminary,  and  have  the  same 
privileges  and  advantages  as  the  members  of  any  other  denomination. 
The  liberality  of  that  gentleman  was  imitated  by  successors  of  the 
same  family.  His  nephew  was  still  more  munificent  in  his  dona- 
tions. Others  of  the  same  name,  even  down  to  the  present  time,  have 
given  substantial  marks  of  their  attachment  to  the  University,  cir- 
cumstances which  afforded  additional  evidence  of  their  continued 
approbation  of  the  temper  and  conduct  of  the  institution  which  they 
cherished.  In  the  limitation  under  consideration,  there  was  nothing 
new  or  peculiar.  An  University  in  a  neighboring  State  (Rhode 
Island)  was  committed  almost  entirely  to  members  of  the  Baptist 
persuasion.  The  college  in  New  York  was  in  the  care  of  Episcopa- 
lians. Mr.  D.  had  no  partiality  for  these  theological  solicitudes. 
But  we  should  be  careful  not  to  indulge  our  own  views  and  biases  to 
the  prejudice  of  vested  rights.  Even  in  the  present  times  our  Leg- 
islatures do  not  hesitate  in  granting  acts  of  incorporation  to  give 
peculiar  and  exclusive  powers  to  those  who  originate  the  institution 
for  which  corporate  powers  are  solicited.  Upon  the  same  principle 
by  which  the  requirement  for  which  the  gentleman  from  Hingham 
contends,  should  be  introduced  into  the  constitution,  we  might  essen- 
tially vary  and  mutilate  the  charters  of  other  institutions  in  the 
Commonwealth,  which  may  not  be  constructed  altogether  agreeably 
to  our  wishes.  Such  a  course  would  be  justly  alarming  to  the  com- 
munity, and  would  in  no  instance,  he  hoped,  be  pursued. 

After  Mr.  Davis  had  finished,  Mr.  Martin's  motion  was  read  from 
the  chair,  and  declared  by  the  chairman  to  be  out  of  order. 

Mr.  Freeman  of  Boston  stated  a  fact  with  respect  to  church  rights. 
The  Episcopal  minister  of  Boston,  he  said,  once  claimed  a  right  to 
be  an  overseer  of  Harvard  University,  and  applied  to  the  Bishop  of 
London  on  the  subject.  He  received  for  an  answer  that  no  teaching 
elders  were  known  in  the  Church  of  England.  Mr.  F.  said  he  was 
not  a  Congregational  minister  himself,  and  consequently  an  altera- 
tion in  conformity  to  the  views  of  his  colleague  from  Boston  (Mr. 
Baldwin)  would  be  for  his  advantage ;  but  the  fact  was,  that  Harvard 
University  was  a  Congregational  institution.  He  gave  his  testimony 
however,  to  the  liberality  it  had  shown  towards  christians  of  different 
sentiments.      He  observed  that  there  were  two  colleges  founded  for 


MASSACHUSETTS    CONVENTION.  77 

a  particular  religion,  and  instanced  the  college  at  Providence,  where 
it  is  required  that  the  President  shall  he  a  Baptist. 

Mr.  Baldwin  rose  to  correct  a  mistake.  He  said  he  was  a  Fellow 
of  Brown  University.  That  college  was  -not  an  exclusive  one. 
The  founders  of  it  were  principally  Baptists,  and  they  provided  that 
the  President  should  be  a  Baptist ;  but  all  the  other  officers  might 
be  of  other  denominations.  That  in  fact,  eight  of  the  present 
Fellows  were  Baptists,  and  four  were  not ;  and  of  the  corporation, 
consisting  of  thirty-six  members,  twenty-two  were  Baptists,  four 
Congregationalists,  five  Episcopalians,  and  five  Friends. 

Mr.  Tuckerman  of  Chelsea  said  he  should  vote  for  the  adoption 
of  the  resolution  for  two  reasons.  1st.  The  convention  of  1780,  he 
thought,  rightly  restricted  themselves  to  declaring  who  should  be  the 
successors  of  the  magistrates  and  teaching  elders  who  constituted  the 
corporation  before  that  time.  They  declared  that  the  successors  of 
the  teaching  elders  were  the  Congregational  ministers  of  the  six 
adjoining  towns.  2d.  The  act  of  1810,  in  proposing  certain  changes 
in  the  charter,  was  conditional  on  its  being  accepted  by  the  corpora- 
tion. At  the  meeting  of  the  President  and  Fellows  of  Harvard 
College,  they  were  in  a  formal  manner  accepted  by  the  corporation 
and  board  of  overseers.  It  was  therefore  understood  that  the  Leg- 
islature had  no  right  to  make  any  change  in  the  charter,  without  the 
consent  of  the  corporation.  If  the  Legislature  had  no  right,  this 
Convention  has  none. 

Mr.  J.  Phillips  of  Boston  said,  if  he  understood  gentlemen  cor- 
rectly, the  objection  to  the  provision  in  the  constitution,  was  on 
account  of  its  being  exclusive.  If  the  question  could  be  settled  by 
the  Convention,  it  might  be  worth  while,  perhaps,  to  make  a 
different  provision ;  but  where  chartered  rights  were  concerned,  the 
Convention  must  pause.  The  original  charter  of  1642  had  made 
use  of  the  terms,  teaching  elders.  What  was  the  intention  of  the 
Legislature  ?  Every  lawyer,  he  said,  knew  the  value  of  cotempora- 
neous  interpretation  of  laws ;  and  from  1642  to  the  present  time, 
the  charter  had  been  construed  so  as  to  exclude  Episcopal  and  all 
other  ministers,  except  Congregationalists,  from  being  overseers. 
Forty  years  ago  the  Convention  only  changed  the  name.  In  sub- 
stance the  Congregational  ministers  were  the  same  as  the  teaching 
elders.  It  might  be  desirable  to  open  the  office  of  overseer  of 
the  University,  to  ministers  of  all  denominations,  but  it  could  not  be 
done  without  the  consent  of  the  University.  The  Legislature  un- 
dertook some  years  ago,  to  alter  the  charter,  but  it  was  upon  condi- 
tion that  the  University  should  accede  to  the  alteration.  The 
University  had  its  rights  defined  in  its  charter,  and  while  it  kept 
within  the  limits  marked  out  by  it,  it  was  independent  of  the  Leg- 
islature. 

Mr.  Parker  of  Boston  (the  President)  wished  his  colleague  (Mr. 
Baldwin)  to  review  the  principles  he  had  laid  down.  He  understood 
him  to  say,  that  if  the  privilege  of  being  an  overseer  of  the  Univer- 
sity were  given  by  the  original  charter  to  Congregational  ministers 


78  MASSACHUSETTS    CONVENTION. 

exclusively,  the  grant  ought  to  be  confirmed.  This  principle  was 
a  sound  one,  and  after  hearing  the  passages  which  had  been  read 
from  the  original  charter  (by  Mr.  Qjjincy)  he  understood  him  to  ad- 
mit that  the  privilege  was  originally  given  to  men  of  that  persua- 
sion, as  it  was  a  matter  of  general  information  that  the  teaching 
elders  were  Congregationalists.  It  would  seem  then  to  follow  from 
these  two  principles,  that  it  is  not  in  the  power  of  the  Convention, 
if  it  were  desirable,  to  alter  the  government  of  the  University ;  but 
the  gentleman  had  laid  down  another  principle,  which  might  seem 
to  him  to  give  the  Convention  a  right  to  interfere,  viz.,  that  those 
who  had  contributed  money  for  the  support  of  the  institution,  ought 
to  have  a  share  in  the  government  of  it.  He  (Mr.  P.)  apprehended 
however  that  the  gentleman  would  see  cause  to  abandon  this  prin- 
ciple. Suppose  a  person  of  the  Legislature  makes  a  voluntary  dona- 
tion to  an  institution  of  this  kind.  Can  such  a  donation  be  thought 
to  give  a  right  to  interfere  in  the  government  of  it  ?  If  the  grant  is 
made  upon  that  condition,  this  alters  the  case.  But  suppose  the 
Legislature  of  Rhode  Island  should  make  a  large  donation  to  Brown 
University ;  it  surely  could  never  be  imagined  that  the  Legislature 
would  have  a  right  to  say,  that  any  other  person  than  a  Baptist 
might  be  President  of  the  University. 

Mr.  D.  Davis  of  Boston.  I  should  not  rise  upon  this  question  if  my 
sentiments  had  been  expressed  by  any  gentleman  who  has  preceded 
me  in  the  debate.  And  my  principal  object  will  be  to  explain  and  en- 
force the  proposition  taken  by  the  Rev.  gentleman  from  Chelsea,  viz., 
that  this  Convention  have  no  authority  to  interfere  with  the  rights, 
privileges  and  powers  of  the  University,  as  they  now  hold  them  under 
the  charter  of  their  incorporation.  I  go  further  and  state,  that  if 
such  an  interference  should  be  made  or  indulged  by  this  Conven- 
tion, their  doing  would  be  void  and  of  no  effect,  unless  accepted  by 
the  government  of  the  University.  Before  I  proceed  to  the  explana- 
tion of  this  principle,  I  would  remark,  that  the  liberal  principles  and 
feelings  expressed  by  the  Rev.  gentleman  from  Hingham,  are  felt 
and  reciprocated  by  all  good  men,  and  particularly  by  the  friends  of 
the  college  ;  but  I  apprehend  the  gentleman  last  mentioned  is  under 
a  mistake  when  he  says  that  the  provision  in  the  article  of  the  con- 
stitution now  under  consideration,  which  designates  ministers  of  the 
Congregational  churches  as  a  part  of  the  number  which  is  to  com- 
pose the  board  of  overseers,  is  repugnant  to  the  third  article  of  the 
declaration  of  rights,  which  provides  that  there  shall  be  no  sub- 
ordination of  one  sect  or  denomination  of  christians,  under  another. 
This  part  of  the  college  charter  has  no  reference  to  the  religious 
establishments  of  the  State,  or  of  the  University,  or  of  the  people 
at  large.  It  only  comprehends  a  provision,  that  certain  clergymen 
of  a  particular  description,  residing  in  several  towns  in  the  vicinity, 
shall,  together  with  the  Senate  and  Supreme  Executive  of  the 
State,  compose  a  part  of  the  board  of  overseers.  This  board  have 
no  ecclesiastical  powers  or  privileges,  are  composed  of  a  good  ma- 
jority of  laymen,  and  their  principal  business  is  to  superintend  and 


MASSACHUSETTS    CONVENTION.  79 

advise  as  to  the  temporal  concerns  of  the  University.  The  University- 
have,  and  ought  to  have  the  exclusive  right  of  selecting  and  ap- 
pointing their  own  officers  and  governors — and  that  part  of  their 
charter  now  under  consideration  contains  nothing  more  than  a  pro- 
vision to  that  effect.  I  will  now  explain  the  reason  why  this  Con- 
vention ought  not  and  cannot  interfere  with  the  government  of  the 
University,  so  as  to  alter  or  change  the  same  in  any  respect  what- 
ever, without  its  consent.  The  charter  of  the  University  was 
granted  in  the  year  1642,  by  the  colonial  government.  It  was 
granted  and  confirmed  by  the  competent  authority,  then  existing. 
This  charter  is  a  grant,  a  contract  between  the  grantor  and  the 
grantees — the  government,  and  the  corporation  accepting  the  charter. 
By  those  principles  which  are  of  universal  application  and  authority 
relative  to  the  law  of  contracts,  there  exists  no  power  in  any  gov- 
ernment of  laws,  founded  upon  the  freedom  and  equal  rights  of  the 
people,  by  which  this  contract  or  grant  can  be  altered  or  impaired 
without  the  consent  of  the  parties  to  it.  The  rights  and  obligations 
resulting  from  it  are  vested  and  cannot  be  taken  away  or  abrogated 
by  the  arbitrary  act  of  any  man  or  body  of  men.  When  the  con- 
stitution of  1780  was  made  and  adopted,  these  rights  and  obligations 
were  recognized  and  confirmed  by  that  instrument.  It  became  ex- 
pedient for  the  Convention  which  framed  that  constitution,  to  give 
such  a  construction  to  the  original  charter,  as  to  declare  who  were 
the  successors  to  this  ancient  corporation ;  this  in  my  opinion  was 
expedient,  though  not  absolutely  necessary ;  for  it  is  a  principle  of 
the  common  law,  that  a  change  of  government  does  not  abrogate 
the  rights  of  a  corporation.  It  was  expedient,  because  that  part  of 
the  board  of  overseers  designated  by  the  terms  "teaching  elders" 
required  an  explanation,  and  a  cotemporaneous  construction.  It  is 
well  known  to  those  who  recollect  the  style  of  the  ancient  laws  of 
Massachusetts,  both  before  and  after  the  adoption  of  the  charter  of 
1692,  that  teaching  elders  were  the  same  persons  that  we  now  call 
ministers  of  the  gospel,  or  public  teachers,  and  that  in  the  year  1692, 
all  these  teaching  elders  or  ministers  of  the  gospel,  were  teachers  or 
ministers  of  the  Congregational  churches.  A  recurrence  to  the 
ancient  laws  and  ecclesiastical  history  of  the  State  for  a  century  and 
a  half,  will  show  this  to  be  the  case.  The  construction,  therefore, 
given  in  this  case,  by  the  convention  of  1780,  was  unquestionably 
correct  ;  but  whether  it  were  so  or  not,  it  has  now  become  imma- 
terial to  us  of  this  Convention ;  for  this  construction  was  adopted 
and  accepted  by  the  government  of  the  University ;  and  it  may  be 
said,  that  in  this  respect  as  well  as  in  others,  they  hold  their  char- 
ter under  the  highest  source  of  human  power  and  authority,  viz.,  by 
the  grant,  assent,  and  declaration  of  the  whole  people  of  Massachu- 
setts ;  not  merely  by  legislative,  but  by  the  highest  source  of  power 
and  right,  the  constitutional  authority  of  the  Commonwealth. 

If  this  reasoning  be  correct,  it  follows  conclusively  that  neither 
the  Legislature,  nor  even  the  whole  people  of  this  State  can  deprive 
the  University  of  their  chartered  rights — these  are  unalterably  estab- 


80  MASSACHUSETTS    CONVENTION. 

lished  and  confirmed  by  the  constitution  of  the  United  States, 
which  provides  that  no  laws  shall  be  made,  "  impairing  the  obliga- 
tion of  contracts" — the  charter  of  a  corporation  is  a  contract  be- 
tween the  government  and  the  grantees — if  the  grant  respects  a 
religious  or  literary  institution,  the  consideration  upon  which  it  is 
made  is  mutual ;  on  the  part  of  the  government  the  consideration 
is  the  good  morals,  principles  and  literary  improvements  it  is  in- 
tended to  encourage  and  disseminate ;  on  the  part  of  the  corpora- 
tion, the  consideration  is,  among  others,  the  employment  and  advan- 
tages it  gives  to  its  officers  and  founders.  This  contract  is  sacred, 
and  under  the  protection  of  the  highest  authority,  the  constitution 
of  the  United  States ;  and  on  this  account  it  follows  most  clearly 
in  my  mind,  that  if  we  were  to  do  an  act  in  this  Convention  which 
altered  the  government,  or  the  rights  of  the  University  in  the 
smallest  degree,  our  act  would  be  null  and  void,  unless  accepted 
and  assented  to  by  the  government  of  the  college.  I  express  this 
opinion  with  more  confidence,  because  we  know  that  this  question 
has  recently  come  before  and  been  decided  by  the  highest  judicial 
authority  of  the  United  States,  in  the  case  of  Dartmouth  College ; 
that  case  presented  a  question  precisely  similar  to  what  might  arise 
between  the  government  of  this  state  and  the  University  of  Cam- 
bridge, in  case  we  should  adopt  without  its  consent  any  provisions 
which  might  impair-  or  infringe  their  chartered  rights.  The  legal 
discussions  in  the  case  of  Dartmouth  College,  both  by  the  bar  and 
the  bench,  have  not  been  surpassed  for  their  learning  or  their  liber- 
ality, in  any  country  or  in  any  age,  and  as  the  questions  in  that 
case  have  been  decided  under  the  advantages  of  so  much  light  and 
deliberation,  and  by  an  authority,  by  which  we  are  all  at  this 
moment  bound,  it  cannot  be  expedient  to  depart  from  its  salutary 
influence.  One  word  further ;  if  the  University  now  or  hereafter 
wish  for  a  change  in  its  government,  either  in  its  principles,  or  in 
the  mode  or  the  persons  by  whom  it  is  administered,  the  legisla- 
tive power  have  competent  authority  at  all  times  to  afford  them  the 
desired  aid.  It  is  clear  that  we  cannot  force  upon  them  any  such 
change. 

Mr.  Savage  of  Boston  said  he  should  not  rise  to  detain  the  House, 
but  that  no  gentleman  in  the  course  of  the  debate  had  taken  up  the 
subject  on  the  grounds,  on  which  the  special  committee  had  pro- 
ceeded. Yet  he  believed  the  result  was  capable,  if  anything  was, 
of  demonstration ;  and  if  the  members  would  patiently  consider 
the  subject,  the  result  in  the  Convention  must  be  as  unanimous  as 
it  was  in  the  committee  room.  He  referred  to  the  constitution  to 
show  that  all  the  three  articles  of  the  first  section  of  the  5th  chap- 
ter were  framed  in  a  similar  form,  and  they  should  each  have  the 
same  construction.  The  first  article  begins  with  a  recital  of  facts, 
that  the  college  was  founded  in  1636,  and  that  many  persons  of 
great  eminence  have  been  in  it  initiated  in  arts  and  sciences  quali- 
fying them  for  usefulness  in  church  and  state,  and  that  encourage- 
ment thereof  tends  to  the  honor  of  God,  advantage  of  religion,  and 


MASSACHUSETTS    CONVENTION.  81 

benefit  of  these  United  States,  and  here  ends  the  recital ;  and  the 
article  proceeds  to  declare  a  present  right,  that  the  corporation  shall 
have,  hold  and  enjoy  all  the  powers,  authorities,  &c,  which  they 
now  have,  or  are  entitled  to  have.     Here  was  no  assertion  or  qual- 
ification of  a  principle,  no  restraint  on  the  Legislature  or  command 
to   them,  but  a  mere  declaration  of  a  state   of  things  existing  in 
1780 ;  and  it  was  all  true.     To  be  sure,  the  rights  would  have  been 
enjoyed  by  that  institution,  if  not  so  declared  at  that  time;  but  as 
it  is  declared,  anything  now  done  to  alter  the  phraseology,  would 
be  in  effect  to  resolve  that  the  state  of  things  in  1780  was  not  truly 
and  justly  stated  in  the  constitution.     The   second  article  begins 
with  a  recital,  that  by  divers  persons,  gifts,  grants,  devises,  &c,  had 
been  heretofore  made,  and  proceeds  to  declare  that  they  are  con- 
firmed.    He  demanded,  are  they  not  confirmed?     The  Convention 
in  1780  could  have  declared  no  otherwise  ;  and  if  in  this  part  of  the 
chapter  we  make  an  amendment,  we  resolve  in  effect,  not  only  that 
they  sjiould  not  have  so  declared,  but  that   indeed   they  did  not  so 
declare  justly  and  truly.     The  third  article  begins  by  recital  of  the 
board  of  overseers  constituted  by  the  act  of  1642,  and  of  the  neces- 
sity of  ascertaining  the  successors  of  that  board,  and  declares  that  the 
governor,  lieut.  governor,  council  and  senate,  are  and  shall  be  deemed 
their  successors,  and  then,  with  the  president  and  ministers  of  the 
Congregational  churches  of  Cambridge,  Watertown,  &c,  they  are 
vested  with  all  the  powers  and  authorities  belonging  to  the  overseers. 
This  part  of  the  constitution  he  contended  must  be  taken  alto- 
gether with  reference  to  that  time,  as  a  declaration  of  facts  and  of 
rights  then  existing.     That  the  articles  are  all  of  one  form,  made, 
if  I  may  so  say,  on  one  last.     It  does  not,  like  other  parts  of  this 
instrument,  look  to  any  future  time.     It  asserts  no  principle,  com- 
mands  no  duty,  gives  no  new  right,  takes  away  or  qualifies  no  old 
one,  requires  nothing  and  restrains  nothing  in  the  Legislature  or  any 
other  branch  of  the  government.     It  merely  states,  what,  if  any- 
thing was  said,  it  could  not  avoid  stating,  and  what  must  then  have 
been  and  must  now  be  the  universal  opinion  of  the  community, 
that  the  University,  in  all  its  privileges,  estates,  members,  rights, 
officers,  corporation  and  overseers,  then  stood  on  the  rights  therein 
recited,  the  same  rights  as  every  other  corporation.     It  was  not  in 
the  nature  of  things,  that  that  Convention  should  be  supposed  to 
give  any  rights  at  that  time,  nor  can  the  case  permit  a  supposition 
that  any  were  or  could  be  taken  away.     The  wise  men  who  framed 
this  constitution  use  very  different  language  when  they  assert  any 
new  principle,  secure  any  new  right,  require  any  duty,  impose  any 
restraint  on  the  Legislature,  or  any  other  body  ;  but  in  all  these  arti- 
cles they  merely  announce  an  existing  state  of  facts,  declare  the 
governor,  &c,  are  successors  in  1780,  and  if  we  change  the  words, 
we  declare  an  absurdity  in  1820,  that  they  were  not  overseers  in 
1780.     We  might  as  well  vote  seven  times  seven  to  be  fifty  and 
not  forty-nine,  as  alter  the  phraseology,  because  we  would  have 
desired  others,  when  we  had  to  state  a  fact  which  could  not  be 
11 


82  MASSACHUSETTS    CONVENTION. 

stated  in  others.  The  word  "congregational"  is  proposed  to  be 
stricken  out ;  but  if  it  is  stricken  out,  the  declaration  will  not  be  true 
in  the  constitution.  Do  not  the  gentlemen  from  Hingham,  he  asked, 
and  Marblehead,  and  my  reverend  colleagues,  see  at  once,  that  the 
language  is  altogether  declaratory  of  what  is,  not  what  ought  to  be? 
And  is  not  the  conclusion  of  the  committee  in  the  first  resolution 
irresistible  ?  By  the  proviso  at  the  end  of  the  articles,  the  Legislature 
are  empowered,  in  as  full  a  manner  as  the  Legislature  of  the  late  pro- 
vince, to  make  any  alteration  "  conducive  to  its  advantage."  The 
framers  of  the  constitution  well  knew,  that  no  other  alterations  could 
be  made  by  the  Legislature.  The  fostering  kindness  of  the  Legisla- 
ture has  in  fact  been  three  times  applied.  The  first  in  1810, 
changed  the  constitution  of  the  board  of  overseers  in  part,  by  ex- 
cluding the  senate  and  introducing  fifteen  laymen  specially  chosen 
at  large,  and  restricting  the  clerical  part  of  the  board  in  number. 
There  seemed  to  be  some  reason  for  this,  because  the  board  was 
thought  too  numerous.  And  indeed  the  number  was  muoh  in- 
creased from  the  state  of  it  in  1642.  The  governor,  deputy  gov- 
ernor and  magistrates,  were  few.  The  assistants,  who  only  were 
the  magistrates  in  1641,  amounted  to  eight;  in  1643  to  ten ;  in  1642, 
the  year  of  creation  of  the  board,  the  number  cannot  easily  be  as- 
certained. The  fifteen  laymen  were,  with  the  governor,  lieut.  gov- 
ernor, council,  president  of  the  senate,  and  speaker  of  the  house, 
substituted.  But  the  community  were  not  satisfied,  and  they  should 
not  have  been  satisfied.  Two  years  after,  the  law  was  repealed  ;  but 
the  repeal  was  total,  and  unhappily  the  advantage  of  the  first  act, 
which  introduced  a  small  body  from  the  community  at  large,  was 
not  retained.  The  community  were  not  satisfied,  and  they  ought 
not  to  have  been,  for  it  was  taking  away  overseers  already  appoint- 
ed, and  so  violating  their  rights  and  those  of  the  college.  The 
third  act,  soon  after,  makes  the  board  as  now  constituted,  keeping 
the  senate  with  other  persons  of  the  civil  list,  as  exhibited  in  the 
constitution,  and  the  additional  laymen  of  the  act  of  1810.  So 
that  it  is  now  as  it  ought  to  be,  not  indeed  as  it  was  declared  by 
the  constitution,  but  as  under  that  instrument,  according  to  the  pro- 
viso, it  might  be  made.  The  clerical  part  of  the  board  are  congre- 
gational, but  the  lay  part  have  several  different  persuasions.  If 
there  were  a  disposition  and  tendency  to  evil,  it  would  be  counter- 
acted, and  nobody  can  entertain  an  apprehension  of  a  mean,  exclu- 
sive, bigoted  spirit,  were  it  possible  so  find  such  in  the  distinguished 
gentlemen  who  must  ever  be  a  minority  of  the  board.  The  gov- 
ernor, lieut.  governor,  council  and  senate,  of  every  possible  denom- 
ination, men  whom  the  people  delight  to  honor,  are  the  great 
majority,  and  always  must  be  ready  to  prevent  any  such  injury. 
Mr.  S.  said  he  rose  merely  to  state  the  views  of  the  committee  to 
whom  the  subject  was  referred,  and  did  not  feel  obliged  to  vindi- 
cate the  college  against  illiberality.  Many  of  the  committee,  per- 
haps a  large  majority,  were  sorry  for  the  expression  in  the  constitu- 
tion, but  they  were  satisfied  it  could  not  be  otherwise,  because  such 


MASSACHUSETTS    CONVENTION.  83 

was  the  fact  in  1780,  and  had  been  from  the  commencement  of  the 
college.  Such  is  the  fact  now,  and  it  seemed  at  first  to  several  of 
the  gentlemen,  and  to  him,  that  we  might  declare  the  present  suc- 
cessors. But,  said  he,  we  need  not  declare  who  for  all  succeeding 
time  shall  be  successors.  Who  were  in  1780  the  successors  of  the 
board  of  1642,  it  was  necessary  to  state ;  who  they  now  are,  it  is 
not  necessary  to  state,  because  all  know  from  the  law.  A  constitu- 
tion is  not  intended  to  point  out  minute  exercise  of  rights,  but  only 
the  rights  themselves.  There  always  will  be  successors,  we  need 
not  fear.  Those  who  have  rights  to  their  seats  have  the  duty  of 
filling  vacancies.  But  in  1780  there  was  a  necessity  of  declaring 
or  announcing  the  fact.  For  ninety  five  years  there  had  been  a 
failure  of  formal  right  to  seats  at  that  board,  either  in  posse  or  in 
esse.  In  1685  all  the  charter  rights  of  Massachusetts  were  taken 
away  by  a  most  arbitrary  and  tyrannical  decree  in  chancery,  on  a 
scire  facias  to  annul  the  charter  of  Charles  I.  All  rights  of  all 
sorts,  dependent  on  that  charter,  were  annulled.  Not,  sir,  said  he, 
that  my  ancestors  or  yours  were,  or  could  be,  deprived  of  the  actual 
possession  of  their  highest  rights.  They  held  them  by  something 
better  than  paper.  No  doubt,  sir,  that  nullification  was  a  nullity  ; 
and  after  the  restoration  of  liberty,  with  William  and  Mary,  any 
tribunal,  and  especially  the  highest,  must  have  overruled  the  ex- 
travagant edict  which  pretended  to  annul  our  charter  without  our 
being  heard.  From  1685  to  1780,  no  declaration  could  be  made, 
who  were  the  successors  of  the  former  board,  except  by  the  college 
itself.  They  called  to  such  seats  proper  men  in  the  successive 
periods,  and  the  constitution  confirmed  in  their  places  the  men 
who  were  then  found  in  those  places.  They  were  the  very  men 
designed  by  the  colony  charter,  as  far  as  it  could  be  followed.  But 
the  province  charter  of  William  and  Mary,  though  it  was  good  for 
liberty  and  right,  was  not  sufficiently  good.  Application  Avas  made, 
time  and  again,  relative  to  the  college,  and  no  change  could  be  ob- 
tained, when  it  was  necessary.  Laws,  orders,  regulations  were 
made,  but  could  not  take  effect,  because  our  governor  was  not 
"from  amongst  us."  All  laws,  rules  and  orders  were  submitted  to 
the  king  in  council,  and  ho  improvement  for  the  college  could  be  ex- 
pected. His  majesty's  governor  had  orders,  and  with  those  orders, 
providing  any  supervision  by  his  majesty,  or  deputy,  the  college 
would  never  comply.  Had  the  institution  complied,  the  free  born 
sons  of  the  college  in  the  General  Court  never  would  have  con- 
sented to  an  enactment.  Now,  it  was  proper,  though  no  failure  of 
a  good  corporation  and  good  overseers  had  ever  been  suffered,  it 
was  becoming  in  the  Convention  of  1780,  to  state  a  declaration  of 
fact,  for  all  those  illustrious  men  and  their  fathers  had  been  born 
since  the  original  attempted  infraction  of  right  in  1685.  I  can  in- 
form the  committee  said  Mr.  S.  how  these  articles  were  introduced, 
and  these  will  support  the  resolution  under  debate.  In  the  Conven- 
tion which  formed  our  constitution,  so  many  sons  of  an  illustrious 
mother  considered  the  University  as  an  object  to  be   named,  I  am 


84  MASSACHUSETTS    CONVENTION. 

happy  that  as  many  are  here  to  revise  their  instrument.  They  in- 
quired of  the  president,  and  other  authority  of  that  day,  probably 
of  the  corporation  and  overseers,  and  asked  if  anything  need  to 
be  done.  What  was  the  answer,  and  the  result  ?  The  governors 
of  the  college  offered  these  propositions,  which  were  inserted  with- 
out alteration.  What  are  they  ?  Any  restraint  of  power  to  be  exer- 
cised against  them  ?  No,  sir,  but  merely  a  declaration  of  what  then- 
rights  had  been,  and  then  were  ;  with  authority  to  the  Legislature 
to  make  any  Jiich  acts  as  would  be  conducive  to  their  advantage, 
not  specifying  any  acts,  demanding  this  or  denying  that. 

When  in  select  committee  these  articles  were  taken  up,  after  dil- 
igent perusal  of  them  and  consideration  of  any  amendments  of 
which  they  at  first  were  thought  by  some  susceptible,  we  all 
agreeed  there  was  nothing  to  be  done.  No  principle  is  asserted  in 
them,  of  which  we  could  suppose  a  discussion  now  to  have  any  in- 
fluence. It  is  merely  past  history,  and  it  seemed  not  necessary  to 
declare  the  present  economy  of  its  administration.  We  were  satis- 
fied that  the  Legislature  had  all  necessary  power,  and  it  is  evi- 
dent to  all,  that  the  Legislature  here  can  do  nothing  but  right.  We 
sent  indeed  to  the  President,  thinking  that  if  it  were  desirable  to 
speak  of  the  present  state  of  the  Institution  so  highly  favored,  some 
amendment  of  phrase  declaratory  thereof,  might  be  introduced.  It 
might  seem,  that  University  should  be  substituted  for  College,  in 
one  or  two  places,  but  both  names  are  used  with  propriety,  and  the 
change  is  unnecessary.  Her  sons  are  more  anxious  that  she  should 
be  an  University  in  fact  than  in  name.  We  agreed,  sir,  to  the 
report,  being  perfectly  satisfied  that  no  alteration  could  be  made 
without  an  absurdity,  except  by  striking  out  the  whole  section.  If 
the  whole  be  a  mere  declaration,  I  see  not,  that  any  gentleman  can 
fail  to  agree  to  the  resolution. 

On  motion  of  Mr.  Pickman,  the  committee  rose,  reported  progress, 
and  asked  leave  to  sit  again,  which  was  granted,  and  the  House 
adjourned. 


Saturday,  November  25. 
The  House  met  according  to  adjournment. 
On  motion  of  Mr.  Nichols  of  S.  Reading, 

Resolved,  That  the  committee  on  the  tenth  resolution,  respecting  oaths  and  sub- 
scriptions, be  instructed  to  take  into  consideration  the  expediency  of  altering  the 
constitution,  so  as  to  substitute  affirmations  for  oaths  in  all  cases  whatsoever,  where 
the  party  shall  entertain  religious  scruples  in  regard  to  taking  oaths. 

On  motion  of  Mr.  Enoch  Mtjdge  of  Lynn, 

Ordered,  That  the  committee  on  the  seventh  resolution,  respecting  the  judiciary, 
be  instructed  to  consider  the  propriety  and  expediency  of  providing  in  the  constitu- 
tion, that  the  person  of  a  debtor,  where  there  is  not  a  strong  presumption  of  fraud, 
shall  not  be  committed  or  continued  in  prison,  after  delivering,  upon  oath  or  affirma- 
tion, all  his  estate,  real  and  personal,  for  the  use  of  his  creditors,  in  such  manner  as 
shall  hereafter  be  regulated  by  law. 


MASSACHUSETTS    CONVENTION.  85 

On  motion  of  Mr.  Willard  of  Fitchburg, 

Ordered,  That  the  committee  on  the  fourth  resolution,  he  instructed  to  inquire  into 
the  expediency  of  so  altering  the  constitution,  as  that  captains,  subalterns,  non-com- 
missioned officers  and  privates  of  the  militia,  be  exempted  from  payment  of  a  poll 
tax  during  the  time  that  they  are  liable  to  do  military  duty. 

On  motion  of  Mr.  L.  Lincoln  of  Worcester, 

Ordered,  That  the  secretary  forthwith  cause  to  be  made  a  list  of  the  members  of 
this  Convention,  arranged  alphabetically,  by  their  surnames ;  and  that  in  taking  the 
yeas  and  nays  upon  any  question,  the  members  shall  be  called  to  answer  in  the  order 
of  their  names  on  that  list. 

Upon  motion  of  Mr.  Qjjincy,  the  Convention  again  resolved  itself 
into  a  committee  of  the  whole,  upon  the  report  of  the  special  com- 
mittee on  the  ninth  resolution :  Mr.  Varnum  in  the  chair. 

The  question  before  the  committee,  was  upon  the  adoption  of 
the  first  resolution  contained  in  the  report,  viz.,  that  it  was  inexpe- 
dient to  make  any  alteration  in  the  constitution,  so  far  as  it  respects 
Harvard  University. 

Mr.  Nichols  of  South  Reading  said  he  was  satisfied,  from  the 
discussion  of  the  preceding  day,  that  the  Convention  had  no  power 
to  interfere  with  the  chartered  rights  of  the  University.  But  he 
was  as  much  averse  to  the  invidious  distinctions  which  had  been 
commented  upon,  as  the  gentlemen  who  had  inveighed  against 
them ;  and  as  the  provisions  of  the  constitution  respecting  the  Uni- 
versity, were  inoperative  at  this  time,  he  would  move  to  amend  the 
resolution  in  discussion,  by  striking  out  all  the  words  after  resolved, 
and  inserting,  "  that  it  is  expedient  that  the  first  section  of  the  sec- 
ond chapter,  which  respects  the  University,  be  expunged  from  the 
constitution." 

Mr.  D.  Webster  said  that  the  time  might  come  when  such  a 
proposition  might  be  very  proper.  If  the  constitution  is  to  be  a 
new  draft — a  new  constitution — then  the  constitution  of  1820 
ought  to  omit  everything  that  is  not  applicable  at  the  present  time ; 
but  he  thought  the  gentleman's  motion  premature,  and  he  hoped  it 
would  be  waived. 

Mr.  Dana  said  he  was  not  prepared  to  act  on  the  proposition  of 
the  gentleman  from  South  Reading.  Mr.  D.  took  a  view  of  the 
present  form  of  government  of  the  University.  The  corporation 
consisted  of  seven  members,  called  the  president  and  fellows,  with 
whom  originated  all  laws  and  regulations  for  the  government  of  the 
University.  This  was  as  it  should  be.  There  was  a  board  of  over- 
seers, who  had  a  negative  only  on  the  proceedings  of  the  corpora- 
tion. This,  too,  was  right.  The  causes  of  doubt  in  the  subject 
before  the  committee,  arose  from  the  manner  only  in  which  that 
board  was  constituted.  It  was  now  composed  of  the  governor, 
lieutenant  governor,  council  and  senate,  &c.  He  could  not  tell 
what  alterations  might  be  made  by  the  Convention,  with  respect  to 
these  officers  of  the  State  government,  nor  of  course  how  these  al- 
terations would  affect  the  board  of  overseers.  He  therefore  thought 
the  gentleman's  motion  was  premature,  and  should  move  that  the 


86  MASSACHUSETTS    CONVENTION. 

committee  rise,  with  a  view  to  the  report  lying  on  the  table,  until 
other  things  should  be  first  settled. 

Mr.  Hubbard  of  Boston  said  he  did  not  know  that  the  members 
of  the  committee  would  be  better  prepared  than  they  were  then ; 
that  they  would  have  to  go  over  the  same  ground  again,  if  the 
committee  rose,  and  so  lose  a  great  deal  of  time. 

Mr.  Webster  thought  the  gentleman  was  out  of  order.  The 
question  was  whether  the  committee  would  rise. 

Mr.  Hubbard  asked  whether  the  whole  subject  was  not  before 
the  committee,  for  the  reasons  for  not  rising  were  to  be  taken  from 
the  whole  subject. 

Mr.  Webster  said  the  gentleman  was  entirely  wrong.  On  a 
motion  of  this  kind,  it  was  never  heard  of,  that  the  merits  of  the 
general  subject  should  be  discussed. 

The  Chairman  considered  the  motion  as  analogous  to  a  motion 
to  adjourn. 

Mr.  Hubbard  said  the  subject  had  been  assigned  for  to-day,  and 
he  thought  they  should  not  be  better  prepared  by  postponing  it. 

Mr.  Blake  of  Boston  was  in  favor  of  the  committee  rising.  He 
was  unprepared  himself,  and  he  apprehended  it  was  the  case  with 
others.  He  had  not  made  up  his  mind,  whether  the  University 
were  a  public  or  private  institution,  and  he  was  not  sure  that  the 
Convention  had  not  the  right  to  mould  the  government  of  it  into 
what  form  they  pleased. 

Mr.  Qjjincy  said,  as  gentlemen  had  been  allowed  to  give  reasons 
for  the  committee  rising,  members  ought  to  be  allowed  to  give 
reasons  on  the  other  side.  He  said  there  was  an  immense  business 
before  the  Convention ;  they  might  talk  for  twenty  years  upon  the 
subject  which  had  been  discussed,  but  he  conceived  it  lay  in  a  nut- 
shell. That  after  the  light  thrown  upon  it  yesterday,  the  House 
were  as  ready  for  the  question  as  they  ever  would  be.  The  de- 
bates would  be  protracted  to  an  endless  length  by  the  course  they 
were  pursuing. 

Mr.  Blake  differed  from  the  gentleman  as  to  the  discussion  of 
yesterday  being  satisfactory.  He  had  expected  much  instruction 
from  it.  The  three  gentlemen  from  Boston  had  given  each  a  dif- 
ferent reason  for  the  report  of  the  special  committee.  One  of  them, 
(Mr.  Qjjincy,)  if  he  understood  him  right,  lamented  that  they  were 
foreclosed  from  altering  the  government  of  the  college,  as  the  con- 
stitution had  only  given  a  construction  to  chartered  rights.  An- 
other, (Mr.  D.  Davis,)  went  on  a  different  ground,  making  no 
attempt  at  construction ;  he  said  the  constitution  made  a  new  grant, 
and  that  it  was  in  the  nature  of  a  contract,  and  therefore  not  in  the 
power  of  the  Convention  to  interfere.  The  third,  (Mr.  Savage,) 
thought  nothing  was  said  in  the  constitution  that  was  applicable  to 
the  present  time,  and  took  the  ground  of  expediency.  He  (Mr.  B.) 
was  not  prepared  to  say  whether  either  of  them  was  right.  He 
wished  no  injury  to  the  celebrated  and  highly  respected  Seminary 
at  Cambridge.     He  did  not  wish  to  interfere  with  its  operations ; 


MASSACHUSETTS    CONVENTION.  87 

but  he  wanted  the  subject  before  the  committee  to  be  thoroughly- 
understood  and  discussed ;  it  had  not  been  yet.  It  involved  a 
question  of  law  of  great  importance.  He  hoped  the  committee 
would  rise,  if  the  Convention  should  sit  all  winter  and  summer  too. 

After  a  few  remarks  by  Mr.  Q,uincy  and  Mr.  Webster,  the  com- 
mittee rose. 

On  motion  of  Mr.  Webster,  in  Convention,  the  committee  of  the 
whole  was  discharged  from  the  consideration  of  the  whole  subject 
which  had  been  before  it,  and  the  report  ordered  to  lie  on  the  table. 

Time  of  session  of  the  Legislature. — The  report  of  the  select 
committee  on  the  subject  of  the  General  Court,  being  in  order,  the 
Convention  resolved  itself  into  a  committee  of  the  whole :  Mr.  Web- 
ster in  the  chair. 

The  report  being  read,  and  the  question  stated,  on  the  adoption 
of  the  first  resolution,  as  follows  : 

Resolved,  That  the  constitution  ought  to  be  altered,  so  as  to  change  the  time  at 
which  the  legislative  body  shall  assemble  every  year,  from  the  last  Wednesday  of 
May,  to  the  first  Wednesday  of  January. 

Mr.  Dana  of  Groton  thought  it  a  duty  to  go  into  an  exposition  of 
the  reasons  which  induced  him,  as  a  member  of  the  special  commit- 
tee, to  agree  to  the  report.  That  part  of  it  which  relates  to  the 
constitution  of  the  Legislature  by  two  branches,  he  thought  was  in 
conformity  with  an  universally  acknowledged  principle  at  the 
present  day.  A  contrary  doctrine  had  been  maintained  formerly, 
but  it  was  now  exploded,  and  no  argument  would  be  necessary  to 
induce  the  Convention  to  accede  to  the  course  pursued  by  the  com- 
mittee in  this  respect.  He  passed  to  the  second  portion  of  the 
report,  which  had  given  rise  to  a  resolution  for  an  alteration.  This 
he  thought  would  be  readily  acceded  to.  The  subject  of  the  third 
portion  of  the  report,  required  a  little  further  consideration.  The 
powers  conferred  on  the  Legislature,  he  thought  were  sufficiently 
ample. 

It  had  been  sometimes  doubted  whether  power  was  granted  to 
establish  a  court  of  chancery.  It  was  important  that  they  should 
possess  that  power,  but  he  thought  they  already  possessed  it.  He 
referred  to  the  article  which  confers  the  power  of  establishing  a  ju- 
dicatory. The  doubt  which  had  been  expressed,  had  arisen  from 
there  being  no  expression  which  relates  to  the  particular  powers  of 
a  court  of  chancery.  If  this  doubt  were  removed,  as  he  thought  it 
would  be,  by  the  expression  of  the  opinion  of  this  Convention,  the 
only  question  hereafter  for  the  Legislature  to  determine,  would  be 
the  expediency  of  establishing  such  a  court.  He  proceeded  to  con- 
sider the  proposition  for  such  an  alteration  as  would  expressly  grant 
to  the  Legislature  the  power  of  granting  to  towns  charters  of  incor- 
poration with  city  powers.  He  had  no  doubt  that  the  Legislature 
possessed  this  power  already.  The  power  of  granting  acts  of  incor- 
poration of  any  kind,  was  nowhere  conferred  in  express  terms,  yet 
the  Legislature  had  always  exercised  that  power.  He  thought  the 
difficulty  arose  only  from  the  provision  that  the  selectmen  should 


88  MASSACHUSETTS    CONVENTION. 

preside  at  certain  elections.  This  difficulty  would  be  easily  over- 
come by  granting  a  charter,  with  the  usual  officers  of  city  govern- 
ment, and  with  selectmen  whose  only  duty  should  be  to  preside  at 
such  elections  as  by  the  constitution  the  selectmen  are  required 
to  preside  at.  For  all  other  purposes  the  usual  city  officers  might 
be  appointed.  He  proceeded  to  consider  some  of  the  cases  in  which 
it  had  been  decided  by  the  courts  of  judicature,  that  the  Legisla- 
ture had  no  right  to  interfere,  such  as  applications  for  new  trials. 
He  thought  that  such  questions  were  most  properly  decided  in  the 
courts  of  justice,  and  that  the  community  had  acquiesced  in  this 
course.  He  proceeded  to  inquire  whether  it  would  be  useful  to 
attempt  a  more  precise  definition  of  powers.  Were  they  about  to 
draft  the  constitution  anew,  they  might  have  made  some  improve- 
ment in  this  respect,  and  adopted  a  better  arrangement.  But  the 
committee,  impressed  with  the  apprehension  lest  they  should  do 
too  much,  had  thought  that  no  alteration  should  be  recommended, 
which  did  not  appear  to  be  required  by  imperious  necessity.  With 
these  views,  which  he  explained  much  more  at  large,  he  said  the 
committee  had  come  to  the  result,  that  it  was  inexpedient  to  make 
any  alteration  in  this  part  of  the  constitution.  He  proceeded  to 
consider  that  part  of  the  chapter  which  confers  on  the  Legislature 
the  power  to  raise  taxes,  imposts,  &c.  In  some  states,  he  said,  that 
a  poll  tax  was  thought  unequal,  and  many  persons  had  contended 
that  taxes  should  be  entirely  drawn  from  property.  But  on  recur- 
ring to  the  practice  that  had  always  prevailed  in  this  Common- 
wealth, he  thought  it  inexpedient  to  make  any  alteration  in  this 
respect.  All  men  are  bound  to  the  government  by  the  same  tie. 
All  equally  receive  protection  from  it — and  he  thought  if  it  were 
submitted  to  that  class  of  men  who  would  be  exempted  from  con- 
tributing to  the  burdens  of  the  public,  if  the  poll  tax  were  abolished, 
to  determine  whether  that  tax  should  be  retained,  they  would  be 
too  generous  to  consent  to  receive  the  protection  without  contrib- 
uting their  proportion  to  the  support  of  it.  In  regard  to  the  power 
of  laying  an  excise  upon  articles  which  may  be  subject  to  an  excise 
duty  imposed  by  the  General  Government,  he  thought  that  it  might 
be  safely  left  to  the  discretion  of  the  Legislature.  As  to  the  prop- 
osition for  changing  the  time  of  the  assembling  the  Legislature,  it 
was  an  abstract  proposition  on  which  every  member  was  competent 
to  judge  for  himself,  and  which  needed  no  illustration.  He  con- 
cluded by  moving  that  the  committee  accept  the  first  resolution. 

Mr.  Pic  km  an  of  Salem  did  not  agree  with  the  gentleman  who 
reported  the  resolution,  that  the  first  Wednesday  of  January  was 
the  most  convenient  day  for  the  assembling  of  the  Legislature.  He 
said  he  had  come  to  the  Convention  with  a  fixed  determination  not 
to  vote  for  any  alteration  which  did  not  appear  manifestly  proper 
and  expedient,  and  he  was  glad  to  find  that  other '  members  enter- 
tained the  same  sentiments.  He  was  particularly  pleased  to  hear 
the  gentleman  who  offered  the  resolutions  for  appointing  the  vari- 
ous committees,  (Mr.  Prescott)  say,  that  we  should  approach  the 


MASSACHUSETTS     CONVENTION.  89 

constitution  with  a  cautious  hand ;  that  we  should  abstain  wherever 
the  advantage  of  any  alteration  was  doubtful.  Mr.  Pickman  gave 
reasons  why  the  first  Wednesday  in  January  should  not  be  the 
commencement  of  the  political  year.  In  the  first  place,  it  was  im- 
portant that  there  should  be  a  full  attendance  of  the  members  of  the 
Legislature  when  the  government  was  to  be  organized.  This 
would  frequently  be  prevented  by  the  inclemency  of  the  season. 
The  first  business  of  the  Legislature  would  be  to  fill  vacancies  in 
the  senate ;  but  if  the  vacancies  should  be  filled  before  the  members 
were  generally  arrived,  persons  might  be  elected  into  the  senate 
contrary  to  the  general  sense  of  the  Legislature.  Another  reason : 
if  the  first  Wednesday  of  January  is  fixed  upon,  the  time  for  the 
elections  must  be  altered.  The  State  elections  and  the  elections  for 
officers  of  the  General  Government,  would  come  near  together  and 
produce  great  excitement.  It  was  important  to  keep  the  two  gov- 
ernments as  distinct  as  possible.  Their  objects  were  very  different, 
and  it  was  better  to  have  the  elections  distinct.  That  great  mis- 
takes and  confusion  would  arise  from  amalgamating  them,  as  he 
had  reason  to  know  had  lately  been  the  case  with  respect  to  the 
election  of  electors  of  the  President  of  the  United  States.  Further, 
all  the  charitable,  religious  and  literary  institutions  hold  their  anni- 
versary at  the  time  of  the  general  election  in  May.  The  meeting  of 
the  Legislature  reflects  honor  on  them,  and  they  in  turn  reflect 
honor  on  the  meeting  of  the  Legislature.  He  mentioned  in  partic- 
ular the  Massachusetts  Congregational  Charitable  Society,  and  ex- 
patiated on  the  benevolent  operations  of  that  institution.  All  this 
would  be  done  away,  as  it  would  be  very  inconvenient  and  un- 
pleasant for  these  institutions  to  celebrate  their  anniversaries  in  Jan- 
uary, and  they  would  be  more  likely  to  fall  into  decay.  There 
were  other  reasons.  The  last  week  in  May  had,  by  ancient  usage, 
become,  as  it  were,  sacred,  as  a  jubilee.  It  was  emphatically  the 
people's  week.  Persons  from  all  quarters  flocked  to  the  metropolis, 
and  mixed  in  sociaj.  intercourse.  On  the  score  of  economy,  it  was 
better  for  the  Legislature  to  meet  in  May,  when  the  days  were 
longer.  More  business  could  be  done  with  greater  comfort ;  and 
since  the  separation  of  Maine,  the  travelling  expenses  of  the  Legis- 
lature were  much  reduced.  A  great  part  of  the  business  of  the  May 
session  was  of  a  private  nature — private  petitions  and  remonstrances 
— orders  of  notice  on  these  petitions,  &c.  These  things  being  dis- 
posed of  at  the  May  session,  gave  the  Legislature  more  time  to 
attend  to  subjects  of  importance  of  a  more  general  nature,  at  the 
winter  session.     He  therefore  hoped  the  resolution  would  not  pass. 

Mr.  Adams  of  Qaiincy  rose  and  inquired  whether  it  would  not  be 
competent  to  take  the  sense  of  the  committee  so  far  as  it  went  to 
decide  on  that  part  of  the  report  which  proposed  no  alteration,  and 
leave  the  other  part  undecided. 

In  answer  to  an  inquiry  whether  this  course  would  be  in  order, 
the  chairman  replied  that  it  was  not  in  the  regular  order  of  proceed- 
12 


90  MASSACHUSETTS    CONVENTION. 

ings,  but  there  could  be  no  objection  to  the  course  if  it  appeared  to 
be  the  unanimous  wish  of  the  committee. 

Mr.  Story  of  Salem  said  he  was  sorry  to  object  to  the  course 
proposed,  but  he  had  a  proposition  which  he  considered  it  his  duty 
to  make,  from  which  he  should  be  precluded  if  the  course  were 
adopted.     The  motion  consequently  was  not  put. 

Mr.  Foster  of  Littleton  had  long  been  of  opinion,  that  one  session 
of  the  General  Court  was  sufficient  for  the  year,  and  he  was  not  sat- 
isfied with  the  reasons  which  had  been  given  against  the  proposed 
change.  May,  he  said,  was  one  of  the  most  busy  seasons  of  the 
year,  and  it  continued  to  be  busy  until  the  harvest  was  gathered  in. 
If  we  retain  the  ancient  time  for  the  stated  meeting  of  the  Legisla- 
ture, there  would  still  be  two  sessions.  Members  would  not  have 
patience  to  finish  the  public  business  at  that  busy  season.  It  had 
been  the  practice  in  past  years  to  travel  over  the  distance  from  their 
homes  to  the  capital  twice — to  get  together  in  May  and  separate, 
leaving  the  greater  part  of  the  business  for  another  session  in  Jan- 
uary. It  would  be  a  great  convenience  to  all  to  come  together  at 
the  latter  season  for  the  first  and  only  time.  The  travelling  was 
not  often  so  bad  as  to  make  it  difficult.  The  several  societies  which 
hold  their  anniversaries  at  the  time  of  the  general  election  will  follow 
the  Legislature  ;  the  charitable  contributions  will  not  be  lessened 
and  may  be  augmented.  There  would  be  a  great  saving  in  the  trav- 
elling fees  of  members,  and  he  thought  the  change  ought  to  take 
place. 

Mr.  Saltonstall  of  Salem  said  that  the  attention  he  had  been 
able  to  give  the  subject  had  brought  him  to  the  same  conclusion 
with  his  respected  friend  and  colleague,  that  they  ought  not  to  adopt 
the  resolution.  The  amendment  under  consideration  was  not  one 
of  the  most  important  that  might  probably  come  before  the  Con- 
vention, but  every  proposition  for  alteration  in  an  instrument  so 
solemn  as  a  constitution  which  had  stood  the  test  of  experience  so 
well  as  ours  was  important.  It  demanded  the  most  serious  considera- 
tion and  ought  not  to  be  adopted  unless  for  very  strong  reasons.  Such 
reasons  had  not  occurred  to  him  in  sufficient  force  to  convince  him 
of  the  expediency  of  the  present  amendment.  If  he  could  see  that 
it  would  tend  to  lessen  the  evils  of  too  much  legislation  or  in  a  great 
degree  to  lessen  expense,  he  would  not  oppose  it.  It  will  not  lessen 
legislation.  A  great  part  of  the  business  of  our  Legislature  is  now 
rather  of  a  private  than  a  public  nature.  Let  us  look  at  the  course 
of  it.  It  is  now  almost  invariably  the  practice,  it  is  indeed  an  es- 
tablished rule,  to  pass  orders  of  notice  in  all  these  cases  ;  with  a  very 
few  exceptions,  they  are  made  returnable  at  the  next  session  of  the 
General  Court.  No  act  would  pass  unless  an  order  of  notice  had 
been  issued,  nor  except  in  especial  cases,  unless  the  order  is  return- 
able at  a  subsequent  session.  He  would  appeal  to  gentlemen  of 
experience  in  our  Legislature,  to  the  members  of  the  standing  com- 
mittees, if  many  of  those  projects  do  not  expire  between  the  sessions. 
Nothing  more  is  heard  of  them.      The  passions  have  had  time  to  cool. 


MASSACHUSETTS    CONVENTION.  91 

What  will  be  the  effect  of  the  proposed  alteration  in  business  of  this 
kind  ?  If  there  is  but  one  session  a  year,  orders  will  be  returnable  at 
the  same  session  at  which  they  arc  presented.  The  interest  of  the  par- 
ties will  be  kept  alive.  The  passions  will  continue  excited,  their 
ardor  will  have  no  time  to  abate.  Or  perhaps  a  rule  will  be  adopted 
like  that  hi  New  York,  of  giving  previous  notice  a  few  days  or  weeks 
before  the  session  of  the  Legislature,  and  then  the  parties  will  come, 
all  armed  and  eager  for  the  contest,  the  business  of  legislation  will 
be  conducted  amidst  great  excitement,  and  will  not  be  so  correctly 
done.  As  to  public  laws  the  same  reasons  will  apply  and  with  at 
least  equal  force.  No  one  at  all  acquainted  with  the  subject  can  deny 
the  great,  the  infinite  evil  of  perpetually  increasing,  perpetually  va- 
rying laws.  Nothing  is  fixed,  nothing  settled.  Scarcely  anything 
is  left  for  the  test  of  experience.  A  law  scarcely  remains  long  enough 
to  receive  a  practical  construction.  But  is  it  certain  the  evil  would 
be  remedied  by  the  proposed  alteration  in  the  constitution  ?  If  so, 
said  Mr.  Saltonstall,  attached  as  I  am  to  the  old  order  of  things, 
fondly  as  I  would  cling  to  the  few  remaining  institutions  in  Massa- 
chusetts, I  would  support  it.  But  he  would  look  again  at  the  order 
of  legislation.  Now,  most  important  subjects  are  referred  from  one 
session  to  the  next.  It  is  seldom  that  an  important  public  law  passes 
the  same  session  in  which  it  is  proposed.  It  is  postponed  to  the  close 
of  the  session,  and  then,  almost  of  course,  it  is  referred  to  the  next. 
In  the  mean  time  it  is  published,  and  at  the  next  session  public 
opinion  is  found  against  it,  or  the  plan  is  abandoned  by  its  author. 
But  if  this  alteration  takes  place  what  will  be  the  course  ?  Will  the 
new  projects  for  improvement  be  referred?  Who  that  is  acquainted 
with  the  benevolent  ardor  of  our  reformers  can  believe  that  ?  Great 
attempts  will  be  made  to  carry  them  through  at  the  single  session, 
and  laws  will  thus  often  pass,  which  otherwise  would  not.  The 
saving  of  expense,  if  any,  will  be  inconsiderable,  probably  not  more 
than  the  travel  of  members  to  the  Legislature.  The  principal  busi- 
ness now  done  at  the  summer  session  is  the  organization  of  the  gov- 
ernment, and  this  must  be  done  at  some  time  or  other.  If  there  is 
but  one  session  in  the  year,  it  must  occupy  as  much  or  more  of  the 
time  of  that  session ;  the  days  will  be  much  shorter  and  much  less 
business  will  be  done  in  a  day.  The  session  will  be  much  longer 
than  heretofore.  The  summer  session  now  seldom  exceeds  a  fort- 
night, and  I  need  not  say  that  a  fortnight  added  to  the  single  session 
would  be  the  same  expense  to  the  government,  except  for  the  travel 
of  the  members,  which  is  inconsiderable.  The  change  is  not  required 
by  the  change  of  circumstances  of  the  Commonwealth.  It  is  true 
that  many  of  the  most  important  subjects  are  committed  to  the  gen- 
eral government,  but  much  still  is  left  to  us,  all  except  subjects  of  a 
public  and  national  concern.  Still  almost  everything  we  see  or  teel 
in  life — the  subjects  that  interest  us — our  daily  concerns — the  reg- 
ulation of  our  contracts,  depend  on  the  government  of  the  Common- 
wealth. He  said  the  reason  given  by  the  committee  for  a  change, 
that  so  many  important  subjects  are  transferred  to  the  general  gov- 


92  MASSACHUSETTS    CONVENTION. 

eminent,  did  not  sound  pleasantly  to  his  ears — it  should  not  be 
heard  from  Massachusetts  men — there   was   tendency  enough    to 
lessen  our  consequence,  he  thought.     Without  our  aid,  everything 
around  and  about  us  is  tending  to  reduce  the  Commonwealth  to  a 
mere  corporation — to  d.estroy  all  the  monuments  of  its  separate  exist- 
ence.    Let  us  not,  said  he,  aid  this  influence  ;  let  us  not  with  our 
own  hands  make  a  path  for  the  torrent  that  threatens  to  overwhelm 
us,  but  rather  erect  mounds  and  securities  against  it.     It  was  indeed 
true,  that  a  large  portion  of  the  Commonwealth  was  severed  from 
us,  but  we  should  recollect  how  much  that  which  is  left  is  increased 
in  importance — how  much  it  exceeds  in  population,  in  commerce, 
in  manufactures,  in  arts,  in  everything  which  calls  for  the  interpo- 
sition of  the  Legislature,  the  whole  Commonwealth  when  the  present 
constitution  was  adopted.     It  will  destroy  the  only  civil  anniversary 
peculiar  to  Massachusetts.     Are  gentlemen,  he  asked,  aware  how 
ancient  it  is?     That  it  was  fixed  in  the  first  charter.     (Here  Mr.  S. 
read  from  the  charter  of  Charles  I.   162.  7,    1627) — that  the  first 
general  election  was  held  on  this  spot  nearly  two  centuries  since, 
on  the  last  Wednesday  of  May,  1630 — that  this  has  remained  un- 
changed in  all  the  changes  of  our  condition  ?     That  it  was  left  in 
the  second  charter — that  it  was  continued  through  our  existence  as 
a  colony — as  a  province  ;  and  was  preserved  after  we  became  a  free, 
sovereign  and  independent  state,  by  the  constitution.     It  is  one  of 
the  oldest  anniversaries  in  the  country.    Why  then  change  it  ?    Who 
that  knows  the  power  of  association,  the  influence  of  habit,  will 
doubt  its  importance.     It  is  connected  with  everything  memorable 
and  interesting  in  our  history.     On  this  day  the  people  of  Massa- 
chusetts, from  the  beginning,  have  exercised  their  highest  rights — 
they  have  quietly  placed  the  rulers  of  their  choice  in  power — the 
governor  and  magistrates  of  the  last  year  have  returned  to  private 
life,  and  those  newly  chosen,  in  the  language  of  the  first  charter, 
have  been  raised  to  our  high  places.     Destroy  this  anniversary  and 
you  will  destroy  everything  that  can  remind  us  of  the  separate  exist- 
ence of  Massachusetts.     Another  circumstance  is,  that  we  shall  lose 
the  principal  holiday  of  Massachusetts.     He  hoped  the  suggestion 
was  not  beneath  the  dignity  of  this  Convention.     On  this  day  all 
are  free.     It  is  a  day  of  mirth  and  festivity.     Some  of  our  politicians 
have  lamented  that  we  had  so  few  such  days.     Why  then  destroy 
this  most  ancient  festival  of  our  State  ?     Who  does  not  remember 
when  he  hailed  the  return  of  this  anniversary  with  joy  ?    On  this  occa- 
sion a  large  portion  of  the  talents,  learning  and  respectability  of  the 
Commonwealth  are  brought  together  at  a  delightful  season  of  the 
year,  upon  this  most  delightful  spot.     The  influence  of  this  is  very 
salutary.     And  he  could  not  but  repeat  the  observation  that  it  is  the 
anniversary  convention  of  the   clergy  and  of  most  of  our  religious 
and   charitable    societies,    which  do  so  much  honor  to  our   Com- 
monwealth.    Another  and  with  him  a  sufficient  reason  against' the 
alteration,  was  that  it  was  not  necessary.     The  meeting  of  the  Leg- 
islature has  been  established  for  two  centuries — whv  change    it  ? 


MASSACHUSETTS    CONVENTION.  93 

We  know  the  practical  effects  of  the  present  system,  that  it  is  good — 
we  know  not  the  consequences  of  an  alteration  ;  it  may  seem  to  be 
unimportant,  but  why  should  we  try  the  experiment  ?  If  there  is 
one  principle  better  settled  than  another,  said  Mr.  S.,  it  is,  that  an 
evil  must  be  very  great  to  justify  a  change  in  government.  The 
reasons  must  amount  almost  to  necessity.  None  such  exist  here. 
I  believe  a  great  majority  of  this  Convention  came  here  opposed  to 
material  changes,  but  there  is  no  knowing  how  far  we  may  go. 
One  committee  reports  and  the  report  is  accepted ;  another  report 
seems  unimportant  and  that  is  accepted  ;  and  so  we  may  go  on  until 
finally  it  will  be  thought  expedient  to  take  the  constitution  into  a 
new  draft  as  has  already  been  suggested.  I  hope  not,  and  that  Ave 
shall  make  no  alterations,  except  such  as  are  necessary. 

Mr.  Bliss  of  Springfield  thought  the  question  an  important  one. 
It  was  a  legislative  question  ;  not  one  about  changing  a  holiday. 
Was  it  most  convenient  to  have  one  session  of  the  Legislature  instead 
of  two,  and  to  hold  that  session  in  January  instead  of  May  ?  This 
was  the  real  question  ?  And  gentlemen  wandered  when  they  con- 
nected it  with  the  other  subject,  upon  which  they  had  been  expa- 
tiating. He  hoped  the  alteration  proposed  would  be  adopted.  It 
would  produce  a  great  saving  of  expense.  This  was  an  important 
reason,  but  it  was  not  the  only  reason.  It  would  be  more  convenient 
with  a  great  proportion  of  the  population.  It  would  ensure  a  more 
general  attendance  of  the  members  of  the  Legislature,  who  would 
not  be  so  likely  to  be  detained  at  home  or  to  desert  the  business  of 
the  session,  to  attend  to  their  private  concerns,  as  they  would  if  the 
Legislature  assembled  in  May ;  and  it  would  prevent  a  great  evil, 
which  had  been  witnessed,  of  legislation  going  on  in  the  summer 
session — important  acts  passing — when  not  a  single  member  was 
present  from  any  town  west  of  the  county  of  Worcester.  The  gen- 
tlemen from  Salem  might  attend  as  well  at  one  season  as  at  another  ; 
it  was  not  so  with  members  living  at  a  great  distance.  But  if  the 
session  should  be  held  in  January,  no  undue  advantage  could  be 
taken  of  the  absence  of  members,  as  then  all  would  have  it  in  their 
power  to  attend.  These  reasons  were  imperious ;  if  gentlemen 
thought  a  holiday  necessary,  let  them  have  one  in  January  ;  though 
a  May  pole  might  not  be  so  proper  in  that  month,  yet  they  might 
find  some  other  Popish  superstition  which  Avould  answer  equally 
well.  There  were  amusements  suitable  for  January  or  February  as 
well  as  for  May.  Or  if  necessary,  they  might  continue  to  keep  their 
holiday  in  May .;  there  would  be  no  difficulty  however,  in  the  various 
institutions  altering  their  anniversary.  Mr.  B.  concluded  by  reca- 
pitulating the  arguments  he  had  urged  in  favor  of  the  alteration 
proposed. 

Mr.  Abbot  of  Westford  moved  that  the  last  Wednesday  of  Octo- 
ber should  be  substituted  for  the  first  Wednesday  of  January.  He 
thought  that  time  more  convenient  in  many  respects ;  it  would  ac- 
commodate the  agricultural  interest  very  well,  and  the  weather  and 
travelling  would  be  better  in  general.     The  travelling  in  January 


94  MASSACHUSETTS    CONVENTION. 

was  frequently  bad,  especially  of  late  years.  He  confessed  it  was 
with  difficulty  that  he  could  relinquish  the  festival  of  May  ;  but  as 
so  much  of  the  State  had  been  taken  off,  he  thought  one  session  of 
the  Legislature  in  each  year  would  be  sufficient,  and  he  had  there- 
fore made  up  his  mind  to  let  the  anniversary  go. 

Mr.  Lawrence  of  Groton  was  opposed  to  the  amendment  of  the 
resolution.  He  said  there  was  the  same  objection  to  the  month  of 
October  that  there  was  to  that  of  May.  It  was  a  season  when  per- 
sons engaged  in 'agriculture  would  be  as  much  occupied.  He  said 
that  in  fixing  the  time  for  the  assembling  of  the  Legislature,  it  was 
proper  to  consider  other  circumstances  that  are  connected  with  it. 
He  thought  January  would  be  a  much  more  proper  time,  because  it 
is  necessary  to  have  regard  to  the  time  when  the  elections  are  to 
take  place.  If  the  Legislature  were  to  assemble  in  October,  the 
annual  elections  must  be  had  in  September,  a  season  which  would 
be  extremely  inconvenient.  This  was  a  sufficient  reason  against 
the  amendment.  He  thought  that  the  month  of  January  was  the 
most  suitable  time  for  beginning  the  session.  It  would  then  be  in 
the  power  of  the  Legislature  to  transact  all  the  business  of  the  year, 
and  in  the  power  of  gentlemen  from  the  country  to  give  their  attend- 
ance. This  was  not  the  case  in  June.  He  agreed  with  the  gentle- 
man from  Springfield,  that  it  was  extremely  inconvenient  for  mem- 
bers from  the  country  to  attend  in  June,  and  that  they  did  not 
attend.  If  they  were  present  at  the  organization  of  the  government, 
they  were  under  the  necessity  of  getting  leave  of  absence  as  soon  as 
possible,  and  it  was  the  duty  of  the  Convention  to  adopt  some  more 
convenient  time.  The  charitable  societies  might  meet  as  well  in 
January.  The  fountains  of  charity  would  not  then  be  frozen  up. 
The  interest  which  the  public  feel  in  these  institutions  will  not  be 
destroyed,  nor  their  effect  impaired.  The  time  of  their  assembling 
may  as  well  be  changed  as  that  of  the  Legislature  ;  the  time  of  hold- 
ing the  commencement  at  the  University  in  Cambridge  had  been 
changed  from  July  to  August,  and  no  inconvenience  had  been  ex- 
perienced from  the  change.  The  anniversary  was  observed  in  the 
same  way  as  it  had  been  before.  He  would  be  the  last  to  give  his 
consent  to  any  unnecessary  innovations  in  our  ancient  institutions  ; 
but  he  was  decidedly  of  opinion  that  the  alteration  proposed  in  this 
resolution,  ought  to  take  place,  and  that  the  motion  for  amendment 
should  not  prevail. 

Mr.  Dana  wished  to  present  for  consideration  the  single  question 
whether  any  change  should  be  made  in  the  time  for  the  purpose  of 
enabling  the  Legislature  to  transact  the  business  of  the  year  at  a  sin- 
gle session.  He  wished,  therefore,  that  the  resolution  could  be  so 
amended  by  striking  out  that  part  of  it  which  designated  a  particular 
day  to  be  substituted,  as  to  express  only  the  expediency  of  adopting 
some  different  day  from  the  present. 

Mr.  Abbot  withdrew  his  motion  to  amend,  and  Mr.  Dana  moved 
to  amend  the  resolution  by  striking  out  that  part  of  it  which  names 
the  day  to  be  substituted.  This  question  being  stated  from  the 
chair. 


MASSACHUSETTS    CONVENTION.  95 

Mr.  S.  A.  Wells  of  Boston  said  his  views  on  the  subject  were  in 
full  concurrence  with  those  which  had  been  expressed  by  the  gen- 
tlemen from  Salem.  He  thought  no  alteration  should  be  made  in 
the  constitution,  but  such  as  were  founded  upon  absolute  necessity. 
If  the  day  for  the  stated  meeting  of  the  Legislature  were  changed, 
other  alterations  would  be  rendered  necessary. 

The  Chairman  suggested  that  the  debate  should  be  confined  to 
the  question  whether  the  resolution  before  the  committee  should  be 
amended  by  striking  out  that  part  which  names  the  time  proposed 
to  be  substituted. 

Mr.  Q-uincy  stated  that  the  resolution  admitted  of  a  division,  and 
suggested  that  a  division  would  be  preferable  to  the  amendment 
moved  by  the  gentleman  from  Groton. 

Mr.  Dana  then  withdrew  his  motion,  and  Mr.  Quincy  called  for 
a  division  of  the  question. 

Mr.  Blake  of  Boston  inquired  whether  it  was  a  question  suscep- 
tible of  a  division  under  the  rule,  and  intimated  his  opinion  that  it 
was  not. 

The  Chairman  stated  the  rule  which  declares  the  right  to  call  for 
a  division  of  a  question  where  the  sense  will  admit  of  it.  The 
question  whether  the  proposition  admits  of  a  division,  is  to  be 
decided  by  the  chair,  subject  to  be  confirmed  or  overruled  by  the 
house.  The  chairman  decided  that  in  the  present  case  the  resolu- 
tion admitted  of  a  division,  and  stated  the  question  then  before  the 
committee  to  be,  whether  it  was  expedient  to  alter  the  time  for  the 
meeting  of  the  Legislature. 

Mr.  Starkweather  of  Worthington  said  he  was  in  favor  of  the 
resolve  reported.  He  was  adverse  to  alterations  generally,  but  he 
thought  the  people  would  expect  one  here.  It  was  expensive  and 
unnecessary  to  have  a  session  in  May.  The  usual  course  was  for 
the  Legislature  only  to  organize  itself  and  hear  a  few  petitions  at 
that  session,  and  members  living  at  a  distance  would  ordinarily  say 
it  is  needless  for  me  to  attend,  there  will  be  enough  without  me.  It 
was  true,  things  might  be  well  done  at  this  session,  but  they  would 
not  be  the  same  things  which  would  have  been  done  if  all  the  mem- 
bers had  been  present.  It  had  generally  been  thought  best  to  post- 
pone the  business  of  this  session  to  the  winter  session,  and  the  com- 
munity, therefore,  looked  upon  the  May  session  as  useless  and  expen- 
sive ;  and  now  the  business  of  the  Legislature  would  be  so  much 
diminished  that  it  would  have  no  more  to  do  at  the  winter  session, 
than  it  has  hitherto  had.  He  was  going  on  to  give  reasons  why  the 
first  Wednesday  in  January  was  the  most  proper  time  for  the  Legis- 
lature to  assemble,  but  was  informed  from  the  chair,  that  the  ques- 
tion of  fixing  the  particular  time  was  not  before  the  committee. 

The  question  was  then  taken  whether  it  was  proper  to  change  the 
time,  and  carried  in  the  affirmative. 

The  other  part  of  the  resolution,  fixing  the  time,  then  came  be- 
fore the  committee. 

Mr.  Tillinghast  of  Wrentham  moved  to  amend  by  striking  out 


96  MASSACHUSETTS    CONVENTION. 

the  first  Wednesday  in  January,  and  inserting  the  first  Wednesday 
in  December. 

Mr.  Prince  of  Boston  said  he  voted  in  the  special  committee  in 
favor  of  a  change  of  time,  because  he  thought  it  would  accommodate 
members  of  the  Legislature  from  the  country  ;  he  did  not  think 
those  consequences  would  result  from  the  change  which  were 
apprehended  by  the  gentlemen  from  Salem.  He  had  hoped  that 
the  gentlemen  from  the  metropolis  would  have  left  it  to  those  from 
the  country  to  fix  the  time  ;  and,  if  it  was  in  order,  he  would  move 
that  a  committee  of  one  from  each  county — 

The  Chairman  informed  the  gentleman  they  could  not  appoint 
any  committees,  being  only  a  committee  themselves. 

Mr.  GIuincy  wished  that  the  question  of  amendment  might  be 
divided. 

The  Chairman  replied  that  by  the  rules  of  the  Convention  this 
question  could  not  be  divided. 

Mr.  Varnum  thought  that  October  would  be  a  more  convenient 
time  than  the  one  proposed  by  the  amendment.  The  business  of 
the  country  would  be  sufficiently  completed. 

Mr.  Beach  of  Gloucester  moved  that  the  committee  should  rise 
and  report  progress. 

Mr.  Bond  of  Boston  hoped  the  motion  would  not  prevail. 
The  question  was  taken  whether  the   committee  should  rise,  and 
carried  in  the  negative. 

Mr.  L.  Lincoln  of  Worcester  said  there  was  but  one  sentiment  in 
the  county  of  Worcester  on  the  question  before  the  committee  that 
January  would  be  the  most  convenient  time,  on  account  of  the 
arrangement  of  the  terms  of  the  courts  of  common  pleas  in  that 
county,  as  also  in  Middlesex.  In  October,  harvesting  would  hardly 
be  done  ;  even  at  this  present  time,  much  of  the  produce  of  the  year 
remained  ungathered. 

The  question  was  taken  for  substituting  the  first  Wednesday  in 
December,  and  decided  in  the  negative. 

A  motion  was  then  made  to  substitute  the  last  Wednesday  in  Oc- 
tober. 

Mr.  Childs  of  Pittsfield  said  the  sentiments  of  Berkshire  coincided 
with  those  expressed  by  the  gentleman  from  Worcester.  October, 
he  said,  would  be  in  the  midst  of  the  autumnal  harvest. 

The  question  was  taken  for  substituting  the  last  Wednesday  in 
October,  and  determined  in  the  negative. 

The  question  was  then  taken  for  adopting  the  first  Wednesday  of 
January,  reported  in  the  resolution,  and  was  carried  in  the  affirma- 
tive. 

On  motion  of  Mr.  Story,  the  committee  rose,  reported  progress, 
and  asked  leave  to  sit  again  ;  which  was  granted. 

The  Convention  then  adjourned  to  Monday  at  11  o'clock. 


MASSACHUSETTS    CONVENTION.  97 

Monday,  November  27. 

The  Convention  was  called  to  order  at  11  o'clock,  and  the  jour- 
nal of  Saturday  was  read. 

The  Convention  then  resolved  itself  into  a  committee  of  the  whole 
upon  the  unfinished  business  of  Saturday. 

The  committee  took  up  the  second  resolution  reported  by  the 
select  committee  upon  the  part  of  the  constitution  relating  to  the 
General  Court,  viz. : 

Resolved,  That  the  constitution  ought  to  be  amended,  so  as  to  render  more  certain 
the  time  in  which  the  governor  shall  return  any  bill  or  resolve  to  which  he  may  re- 
fuse his  approbation,  by  adding  to  the  second  article  of  the  first  section  these  words  : 
— "  Unless  the  General  Court  by  their  adjournment  shall  prevent  its  return,  in  which 
case  it  shall  not  be  a  law." 

Mr.  Dana  of  Groton  said  the  select  committee  were  induced  to 
report  this  resolution,  in  consequence  of  what  took  place  in  the  year 
1809  or  1810.     A  bill  respecting  state  affairs  was  passed  by  both 
houses  of  the  Legislature  towards  the  close  of  the  session,  and  sent 
to  the  governor  for  his  approbation.     After  the  adjournment  of  the 
Legislature,  it  was  observed  that  this  bill  was  not  mentioned  in  the 
list  of  acts  passed,  but  it  was  supposed  that  it  had  been  approved  of 
by  the  governor.     At  the  next  session,  however,  the  bill  was  re- 
turned by  the  governor  with  his  objections,  and  the  house  of  repre- 
sentatives refused  to  act  upon  it,  on  the  ground  of  its  not  being  con- 
stitutionally before  them,  not  having  been  returned  within  five  days. 
It  was  no  doubt  the  intention  of  the  framers  of  the  constitution,  that 
the  governor  should  examine  the  bills  presented  to  him  :  for  which 
purpose  he  was  permitted  to  retain  them  five  days.     It  Was,  how- 
ever, customary  to  load  the  governor's  table  at  the  end  of  a  session 
with  bills  and  resolves,  so  that  he  had  not  time  to  give  them  such  an 
examination  as  they  ought  to  receive  ;  and  this  had  sometimes  been 
a  subject  of  complaint  with  the  governor.     Mr.  D.  did  not  mean  to 
say  that  five  days  were  too  long  or  too  short  a  time  for  the  governor 
to  retain  a  bill ;  it  might  sometimes  be  thought  unreasonable  for 
him  to  detain  the  Legislature  five  days,  waiting  for  the  return  of  a 
bill,  when  they  were  otherwise  ready  to  adjourn.     The  governor, 
however,  ought  to  have  a  reasonable  time,  and  this  time  ought  to 
be  certain.     There  was  an  ambiguity  in  the  constitution  with  re- 
spect to  the  five  days  mentioned  in  it.     He  had  understood,  indeed, 
that  there  had  been  a  judicial  construction,  by  which  they  were  in- 
terpreted   to    mean    five    legislative  days.     He  had    not  seen  the 
grounds  of  this  decision,,  and,  therefore,  had  still  some  doubts  as  to 
the  meaning  of  the  phrase  legislative  days,  whether  they  included 
or  excluded  Sundays ;  for  in  a  time  of  great  emergency  during  the 
revolution,  the  Legislature  had  held  a  session  on  Sunday,  and  cir- 
cumstances may  require  the  same  to  be  done  hereafter.     He  would, 
therefore,  have  the  phraseology  like  that  adopted  in  Connecticut — 
so  many  days  exclusive  of  Sundays. 

The  question  of  adopting  the  resolutions  was  then  taken  and  de- 
cided in  the  affirmative. 
13 


98  MASSACHUSETTS     CONVENTION. 

Mr.  Dana  moved  to  amend  the  report  of  the  select  committee  by 
inserting,  immediately  after  the  preamble,  the  following  resolve  : 

Resolved,  That  a  legislative  department  formed  by  two  branches,  a  senate  and 
house  of  representatives,  each  having  a  negative  upon  the  other,  is  most  congenial  to 
the  interests,  habits,  and  manners  of  this  people,  as  well  as  most  conformable  to  ap- 
proved anxioms  of  policy;  and  that  any  alterations  in  the  formation  of  the  department 
is  wholly  unnecessary,  and  would  be  highly  inexpedient. 

This  amendment  was  adopted,  291  to  6. 

The  report  of  the  committee  on  the  sixth  resolution,  embracing 
that  part  of  the  constitution  which  relates  to  the  secretary,  treasurer, 
&c,  was  taken  up  and  read  : 

Resolved,  That  it  is  expedient  to  alter  and  amend  the  constitution  of  this  Common" 
wealth,  by  striking  out  the  words  "  notaries  public  and  naval  officers  "  in  the  first  ar~ 
tide  of  the  fourth  section  of  the  second  chapter  of  the  second  part. 

Mr.  Ward  said  the  effect  of  the  proposed  alteration  was  so  obvi- 
ous that  no  effort  would  be  necessary  to  explain  it  to  the  House, 
and  he  would  not  take  up  time  by  going  fully  into  the  reasons  in 
support  of  it.  The  situation  of  the  state  at  the  time  of  the  adoption 
of  the  constitution,  was  such  that  a  naval  officer  was  considered 
necessary,  but  at  present  the  exclusive  right  of  raising  a  revenue  by 
a  duty  on  imports  is  given  to  the  government  of  the  United  States, 
and,  consequently,  no  state  officer  of  that  description  is  necessary. , 
None  has  been  elected  by  the  Legislature  of  this  State,  since  the 
adoption  of  the  Constitution  of  the  United  States.  The  committee 
had,  therefore,  thought  the  provision  for  the  appointment  of  this  offi- 
cer should  be  struck  out  of  the  constitution.  In  relation  to  the  ap- 
pointment of  notaries  public  by  the  two  branches  of  the  Legislature, 
there  had  been  sufficient  experience  of  the  inconvenience  of  the 
mode  of  appointment,  the  delay  and  expense  occasioned  by  it,  and 
the  impossibility  of  obtaining  the  information  necessary  for  a  judic- 
ious selection,  to  show  that  it  was  much  better  that  they  should  be 
appointed  in  the  same  way  as  justices  of  the  peace  and  other  officers 
of  government  are  appointed.  The  form  in  which  the  proposition 
should  be  stated  in  the  resolution,  was  matter  for  consideration.  He 
thought  it  ought  to  depend  upon  the  form  in  which  the  amendments 
in  general  are  to  be  made.  If  the  constitution  was  to  remain  as  at 
present,  and  the  amendments,  instead  of  being  incorporated  into  the 
body  of  it,  were  to  be  appended,  in  the  form  in  which  the  amend- 
ments are  made  to  the  constitution  of  the  United  States,  which  he 
thought  would  be  the  most  proper  mode,  the  resolution,  perhaps, 
should  have  stated  the  proposed  amendment  in  a  different  form.  He 
doubted  the  power  of  the  Convention,  under  the  act  under  which 
they  were  sitting,  to  abolish  the  old  constitution  and  proceed  to  form 
a  new  one  as  a  substitute ;  but  it  was  their  duty  to  preserve  the 
trunk,  and  engraft  upon  it  such  alterations,  if  any,  as  they  should 
think  expedient,  and  to  submit  the  specific  alterations  to  the  peo- 
ple, for  their  adoption  or  rejection.  If  the  proposed  alterations  are 
not  adopted,  the  constitution  will  stand  as  it  did  before.  It  might 
be  proper  that  the  amendment  should  stand  as  it  was  proposed  by 


MASSACHUSETTS    CONVENTION.  99 

the  resolution.  In  declaring  that  certain  words  be  struck  out  of  the 
article,  is  understood  merely  that  they  remain  inoperative  ;  but  if  it 
was  intended  that  they  should  be  literally  struck  out,  the  amend- 
ment could  be  stated  in  a  better  form. 

Mr.  Bond  of  Boston  asked  for  information  of  the  propriety  of  re- 
taining the  words  "commissary  general"  in  the  constitution.  He 
understood  that,  at  present,  no  such  officer  was  appointed  by  the 
two  branches  of  the  Legislature,  and  it  was  not  probable  that  they 
would  be  required.  If  such  an  officer  should  at  any  time  be  required, 
it  could  be  provided  for  by  law,  and  in  such  case  it  might  be  thought 
expedient  to  give  the  appointment  to  the  governor  and  council. 

Mr.  Ward  said  that  it  would  be  a  useless  labor  to  examine  the 
whole  constitution  and  determine  whether  a  word  was  to  be  found 
that  could  be  struck  out.  He  did  not  know  whether  the  office  of 
commissary  general  was  necessary — it  might  possibly  become  so, 
and  therefore  it  was  useful  that  there  should  be  provision  for  it  in 
the  constitution — if  it  never  became  necessary,  the  provision  for  it 
was  harmless.  If  the  constitution  were  to  be  now  wholly  new  mod- 
elled, it  might,  perhaps,  be  found  that  this  provision  was  super- 
fluous. But  under  present  circumstances,  he  preferred  letting  it  re- 
main to  spending  time  in  debating  whether  it  should  be  struck  out. 

Mr.  Austin  of  Charlestown  thought  it  would  be  expedient  to  ex- 
tend the  time  limiting  the  period  of  office  of  treasurer  and  receiver 
general.  The  person  who  filled  the  office  was  required  to  give  up 
his  time  and  attention  ;  and  if  he  was  faithful  to  his  trust,  he  became, 
by  several  years7  continuance  in  office,  the  best  qualified  for  dis- 
charging its  duties.  He  approved  of  the  general  principle  of  rotation 
in  office  ;  but  in  relation  to  this  office  the  principle  he  thought  was 
less  applicable  than  to  most  others,  He  should  move  to  amend  the 
article  by  substituting  seven  or  eight  years  for  five,  the  present  limi- 
tation. 

Mr.  Russell  of  Boston  rose  to  a  question  of  order.  He  said  that 
the  subject  under  consideration  was  the  adoption  of  the  resolution, 
reported  by  the  committee,  and  the  debate  should  be  confined  to  the 
question  of  accepting  that  resolution. 

The  Chairman  said  that  the  whole  report  was  referred  to  the  com- 
mittee and  was  under  consideration.  It  might  be  best  to  take  the 
sense  of  the  committee  upon  the  resolution  which  had  been  under 
discussion  before  proceeding  to  the  consideration  of  other  questions. 

Mr.  Story  of  Salem  rose  to  move  an  amendment  to  the  resolu- 
tion under  consideration,  by  adding  to  it  the  words  "  commissary 
general "  before  notaries  public.  His  reason  for  the  amendment 
was  short  and  would  take  up  but  little  time.  By  the  clause  as  it 
now  stands,  it  was  imperative  that  the  General  Court  should  appoint 
the  officer  named.  He  thought  it  was  more  fit  that  it  should  be  left 
to  the  Legislature  to  decide  whether  the  appointment,  if  rendered 
necessary,  should  be  made  by  the  governor  and  council,  or  by  the 
Legislature.  The  appointment  was  not  distinguishable  in  its  nature 
from  others  which  are  now  required  to  be  made  by  the  executive. 


100  MASSACHUSETTS    CONVENTION. 

The  governor,  as  the  head  of  the  military  of  the  Commonwealth, 
must  be  better  acquainted  with  the  qualifications  necessary  for  the 
office,  and  with  the  characters  of  candidates  for  it,  than  the  members 
of  the  Legislature  would  be. 

The  council,  from  the  nature  of  their  duties,  have  an  opportunity 
of  acquiring  the  same  sort  of  knowledge.  He  thought  it  therefore 
important  that  this  officer,  whenever  required,  should  be  appointed 
under  the  responsibility  of  the  commander  in  chief.  The  office  may 
become  necessary  when  the  Legislature  are  not  in  session  ;  a  va- 
cancy may  occur  during  the  recess  of  the  Legislature,  and  there 
may  be  an  imperious  necessity  of  the  services  of  such  an  officer.  It 
may  happen  that  an  extra  session  of  the  Legislature  should  be 
rendered  necessary  for  the  appointment  of  this  officer,  or  that  the 
appointment  should  be  made  nine  or  ten  months  after  there  is  occa- 
sion for  his  services.  There  was  another  reason  for  objecting  to  this 
mode  of  appointment.  The  larger  the  body  is  by  which  appoint- 
ments are  made,  the  less  is  the  responsibility  that  is  felt  in  making 
the  appointment.  Where  the  appointment  is  left  with  the  governor, 
he  is  necessarily  responsible  for  it,  but  when  made  by  the  Legisla- 
ture, the  responsibility  is  so  divided  as  not  to  be  felt.  Those  who 
are  acquainted  with  the  manner  of  making  appointments  in  conven- 
tion of  the  two  houses  of  the  Legislature,  know  how  extremely  dif- 
ficult it  is  to  obtain  the  information  necessary  for  acting  with  any 
discretion,  and  that  it  is  a  mode  of  appointment  the  least  fitted  of 
any  that  could  be  devised  for  giving  satisfaction.  Three  fourths  of 
the  members  of  the  Legislature  cannot  know  anything  about  the 
qualifications  of  the  candidate  for  the  office.  He  saw  no  reason  why 
this  officer  should  be  appointed  in  a  different  manner  from  the  ad- 
jutant and  quarter  master  generals.  The  Legislature  would  act  un- 
der the  want  of  personal  responsibility  inherent  in  large  bodies  :  it 
would  be  most  difficult  for  them  to  judge  of  the  qualifications  for 
the  office,  and  in  case  of  the  breaking  out  of  a  war  or  insurrection  it 
might  be  necessary  to  call  them  together  for  the  purpose  of  making 
a  single  appointment. 

Mr.  Ward  of  Boston  said  he  thought  it  was  thrown  upon  those 
who  would  make  any  particular  alteration  in  the  constitution,  to 
show  that  some  evil  now  existed  which  would  be  removed  by  the 
proposed  alteration.  In  regard  to  the  appointment  of  notaries  pub- 
lic, it  was  the  general  sentiment  there  was  a  great  inconvenience  in 
the  present  mode.  But  with  respect  to  commissary  general,  he  had 
heard  of  no  objection  from  any  quarter — no  such  officer  had  been 
appointed  for  many  years,  and  no  inconvenience  had  been  felt.  His 
principal,  objection  to  the  alteration  proposed,  was  an  aversion  to 
make  any  change  where  it  was  not  necessary.  He  thought  the  pro- 
posed amendment  unnecessary,  but  he  was  not  very  tenacious  of  his 
opinion. 

Mr.  Blake  of  Boston  was  opposed  to  the  amendment  for  this  gen- 
eral reason,  that  he  was  resolved  to  assent  to  no  amendment  the 
tendencv  of  which  should  impair  in  any  degree,  the  republican  form 


MASSACHUSETTS    CONVENTION.  101 

of  this  government.  The  commissary  general  was  an  officer  of 
great  importance  and  responsibility.  He  was  entrusted  with  the  dis- 
bursement of  large  sums  of  money,  and  was  invested  with  extensive 
discretionary  powers.  There  was  to  be  observed  in  every  letter  of 
the  constitution  great  caution  in  the  distribution  of  the  powers  of 
government.  The  appointment  even  of  notaries  public,  an  office  of 
comparatively  little  importance,  was  not  left  to  the  executive,  but 
was  granted  to  the  two  branches  of  the  Legislature.  Major-generals 
were  also  appointed  by  the  Legislature,  and  he  presumed  that  no  al- 
teration with  respect  to  them  would  be  proposed.  Appointments  to 
offices  similar  to  this  in  the  government  of  the  United  States,  were 
not  made  by  the  executive  alone,  but  required  the  consent  of  the 
senate.  He  was  aware  that  the  responsibility  of  the  individuals 
who  unite  in  making  the  appointment  was  diminished  by  their  num- 
ber,— but  this  argument,  if  it  was  of  any  weight,  went  too  far  ;  it 
might  extend  to  all  the  duties  of  government.  He  would  not  advo- 
cate any  change  for  which  there  was  not  shown  to  be  some  neces- 
sity. 

Mr.  Dearborn  of  Roxbury  said  that  in  all  governments,  the  com- 
missary general  was  one  of  the  general  staff.  Generals  of  armies 
have  the  appointment  of  their  staff  in  all  countries  ;  they  are  respon- 
sible for  their  conduct,  and  for  this  reason  should  have  the  control 
over  them.  The  adjutant  and  quarter  master  generals  are  in  this 
State  appointed  by  the  commander  in  chief,  and  why  the  appoint- 
ment of  commissary  generals  was  reserved  to  the  Legislature,  he 
said,  was  to  him  inexplicable.  It  had  been  said  that  the  commis- 
sary general  was  entrusted  with  the  expenditure  of  large  sums  of 
money — so  was  the  adjutant  general ;  one  supplies  arms  and  muni- 
tions of  Avar,  the  other  provisions,  and  the  expenditure  for  the  former 
object  was  greater  than  for  the  latter.  The  public  are  disposed  to 
throw  censure  upon  the  commander  in  chief;  and  to  take  from  him 
the  means  of  reflecting  glory  on  himself,  and  honor  upon  his  coun- 
try, would  be  dealing  unjustly. 

Mr.  Apthorp  of  Boston  was  in  favor  of  the  resolution  as  it  stood 
— he  said  if  we  were  likely  to  be  much  in  a  state  of  war  he  should 
agree  with  the  gentleman  last  speaking.  But  for  a  time  of  peace, 
the  present  provision  was  not  objectionable.  He  thought  it  inexpe- 
dient to  take  away  from  the  Legislature  the  appointment  which  might 
not  be  wanted — in  time  of  war  the  office  would  be  important.  The 
commissary  would  have  the  control  of  large  sums  of  money,  and  to 
give  the  appointment  to  the  governor,  might  be  imparting  to  him  too 
great  a  proportion  of  power. 

Mr.  Sturgis  of  Boston  said  that  striking  out  the  clause  did  not 
necessarily  give  the  power  of  appointment  to  the  governor.  It  Mras 
not  necessary  to  have  any  provision.  If  it  was  left  out  entirely,  it 
would  be  competent  for  the  Legislature  to  provide  for  the  appoint- 
tment  of  the  officer,  if  they  should  see  fit  to  establish  the  office. 

Mr.  Hoyt  of  Deerfield  said  that  the  law  of  the  United  States  for 
the  government  of  the  militia  did  not   provide  for  the   appointment 


102  MASSACHUSETTS    CONVENTION. 

of  any  such  officer.  He  was  in  favor  of  striking  out  the  words.  If 
the  United  States  government  should  require  the  appointment  of  such 
an  officer,  the  Legislature  could  direct  the  mode  of  appointment. 

The  question  was  taken  on  adopting  the  amendment  proposed  by- 
Mr.  Story,  and  passed  in  the  affirmative. 

The  question  being  stated  on  adopting  the  resolution  as  amended, 

Mr.  Parker  (the  President)  inquired  whether  it  had  been  con- 
sidered that  some  further  provision  would  be  necessary  in  relation  to 
the  appointment  of  notaries  than  that  proposed  in  the  resolution. 
Taking  away  the  power  of  appointment  from  the  Legislature  would 
not  give  it  to  the  executive. 

Mr.  Ward  said  that  the  consequence  would  be  inevitable,  that  a 
further  amendment  should  be  made  in  that  part  of  the  constitution 
which  grants  powers  to  the  executive.  But  the  committee  who  re- 
ported this  resolution  did  not  consider  that  part  of  the  measure  as 
coming  within  their  particular  province.  But  he  presumed  it  would 
be  provided  for  by  the  proper  committee. 

Mr.  Varnum  of  Dracut  said  that  the  committee  who  had  under 
consideration  that  part  of  the  constitution  which  relates  to  the  pow- 
ers and  duties  of  the  executive,  and  who  had  not  yet  reported,  had 
taken  this  subject  into  consideration,  and  would  report  a  proposition 
for  giving  the  power  of  appointing  notaries  public  to  the  executive. 

Mr.  Parker  suggested  for  the  consideration  of  the  committee, 
that  in  his  opinion  farther  provision  should  be  made  for  the  duration 
of  this  office,  and  that  the  term  of  office  should  be  the  same  as  that 
of  justice  of  the  peace.  The  duties  of  the  office  were  similar — some 
preparation  for  it  was  necessary,  and  he  hoped  that  provision  would 
be  made  for  its  continuance  for  the  term  of  seven  years,  subject  to 
removal  for  improper  conduct. 

Mr.  Ward  said  that  he  had  prepared  a  resolution  for  effecting  this 
object,  which  he  should  take  a  proper  opportunity  of  submitting  for 
the  consideration  of  the  Convention. 

The  question  on  the  adoption  of  the  resolution  was  taken,  and 
passed  in  the  affirmative. 

Mr.  Austin  of  Charlestown  wished  to  have  the  constitution  per- 
fect, not  only  in  substance,  but  likewise  in  logic,  style  and  taste. 
He  therefore  moved  that  it  be  amended  in  the  second  chapter,  fourth 
section,  first  article,  by  substituting  "in  joint  body"  for  "in  one 
room,"  so  as  to  read,  "  The  secretary,  &c.  shall  be  chosen  annually 
by  joint  ballot  of  the  senators  and  representatives  in  joint  body" 
He  proposed  a  further  amendment  by  striking  out  all  the  subsequent 
part  of  the  same  article,  considering  it  bad  logic. 

The  gentleman  was  informed  from  the  chair  that  his  motion  was 
irregular ;  that  he  might  move  to  amend  the  report  of  the  select 
committee  by  adding  a  resolution,  but  he  could  not  move  to  amend 
the  constitution. 

The  gentleman  varied  his  motion  accordingly. 

Mr.  L.  Lincoln  of  Worcester  said  he  was  opposed  to  the  amend- 
ment :    that   he    came  to    the   Convention    with   the  intention  to 


MASSACHUSETTS    CONVENTION.  103 

apply  a  strong  hand  to  the  weak  parts  of  the  constitution,  but  not 
to  demolish  the  fabric.  What  could  be  the  object  of  the  gentleman 
from  Charlestown  ? — merely  to  gratify  a  fastidious  taste  !  It  was 
chimerical  to  think  of  satisfying  every  member  of  that  assembly  in 
this  respect.  With  regard  to  the  clause  which  prevents  the  same 
person  from  being  eligible  more  than  five  years  successively  as  treas- 
urer, in  order  that  the  Commonwealth  might  be  assured,  that  the 
moneys  remaining  in  the  public  treasury,  upon  the  settlement  and 
liquidation  of  accounts,  were  their  property,  he  thought  the  logic 
was  good  enough.  The  people  understood  it ;  it  had  received  a 
practical  construction.  It  was  one  of  the  most  useful  features  in  the 
constitution.  The  treasurer's  office  was  one  of  high  responsibility, 
and  we  had  no  security  without  a  provision  of  this  sort.  We  had 
had  occasion  to  regret  that  the  times  for  accounting  were  not  more 
frequent.  It  was  highly  important  that  the  public  moneys  should 
be  counted  from  time  to  time.  There  should  be  some  mode  of  as- 
certaining what  money  was  in  the  treasury,  and  none  could  be  bet- 
ter than  requiring  one  treasurer  to  hand  it  over  to  a  successor,  who 
would  be  cautious  for  what  sums  he  became  responsible.  If  the  office 
Avere  continued  for  a  longer  number  of  years  or  for  life,  the  treasurer 
would  make  out  a  fair  statement  on  paper,  while  in  fact  the  treasury 
might  be  bankrupt.  Unless  members  came  there  with  a  fanciful 
desire  for  novelties,  he  trusted  such  alterations  as  the  gentleman  pro- 
posed would  not  prevail. 

Mr.  Ward  expressed  surprise  that  when  we  had  such  frequent 
examples  of  cashiers  and  other  persons  embezzling  money,  any 
member  should  have  thought  of  proposing  such  an  amendment. 
There  was  no  other  mode  than  the  one  contained  in  the  constitu- 
tion of  calling  people  to  account,  so  as  to  prevent  evasion.  If  the 
treasurer  were  to  continue,  he  would  only  have  to  borrow  money 
of  his  friends,  to  show  to  the  inspectors  of  his  accounts,  to  be 
returned  as  soon  as  the  examination  is  over.  The  term  of  five 
years  was  long  enough.  There  was  not  such  a  dearth  of  talents 
and  integrity  among  us  that  we  could  not  find  men  suitable  to  fill 
the  office  of  treasurer.  Besides,  by  an  intermission  for  one  year,  a 
treasurer  became  eligible  again  for  five  years  more. 

The  question  was  taken  upon  Mr.  Austin's  motion  and  decided 
in  the  negative,  but  few  voting  in  favor  of  it. 

The  committee  then  took  up  the  report  of  the  select  committee 
on  the  part  of  the  constitution  which  relates  to  delegates  to 
Congress. 

The  question  before  the  committee  was  upon  the  following 
resolve,  viz. : 

Resolved,  That  the  fourth  chapter  of  the  second  part  of  the  constitution  of  this 
Commonwealth,  having  become  inapplicable  to  the  existing  condition  of  the  State  of 
Massachusetts,  ought  to  be  expunged  therefrom. 

Mr.  Austin  of  Boston  said  he  agreed  with  the  gentleman  of  the 
select  committee  in  the  reasons  which  they  gave  for  expunging  this 
chapter,  but  he  was  opposed  to  the  resolution  which  they  had 
reported,  and  wished  to  make  an  amendment. 


104  MASSACHUSETTS    CONVENTION. 

Mr.  Austin  then  moved  to  amend  the  resolution  reported  by  the 
committee  on  the  eighth  resolution,  so  as  to  provide  that  the  repre- 
sentatives of  this  Commonwealth  in  the  United  States  and  the 
electors  of  president  and  vice  president  of  the  United  States  shall 
from  time  to  time  be  chosen  by  the  people,  in  such  convenient  dis- 
tricts as  the  Legislature  shall  by  law  -provide,  and  that  the  Legis- 
lature of  this  Commonwealth  shall  be  required,  next  after  every 
apportionment  of  representatives  by  the  Congress  of  the  United 
States,  to  provide  by  law  for  dividing  the  Commonwealth  into  dis- 
tricts for  the  choice  of  not  more  than  two  representatives  or  elec- 
tors in  any  one  district,  which  law  shall  not  be  altered  until  after 
a  new  apportionment  shall  be  made  by  the  Congress  of  the  United 
States. 

A  motion  was  made  that  the  committee  should  rise ;  and  after 
some  debate  was  decided  in  the  negative,  137  in  favor  —  236 
against. 

The  question  on  adopting  the  amendment  was  then  taken  and 
decided  in  the  negative. 

Mr.  Morton  of  Dorchester  was  opposed  to  having  the  whole 
chapter  expunged,  and  he  moved  to  amend  the  resolution  by  striking 
out  the  words  "expunged  therefrom,"  and  inserting  a  provision 
that  the  chapter  be  so  altered  as  to  direct  that  the  senators  and 
representatives  of  this  Commonwealth  in  the  Congress  of  the 
United  States,  when  duly  chosen,  shall  have  their  commissions  under 
the  hand  of  the  governor  and  the  great  seal  of  the  Commonwealth, 
and  attested  by  the  Secretary. 

Mr.  Parker  asked  if  there  was  any  necessity  for  such  a  provision 

—  whether  the  senators  and  representatives  are  not  already  fur- 
nished with  certificates  of  their  election,  which  are  satisfactory. 

Mr.  Morton  said  his  object  was  to  retain  the  chapter  in  the  con- 
stitution. His  amendment  proposed  to  require  by  a  constitutional 
provision  what  is  now  done  by  law. 

The  question  was  taken  on  Mr.  Morton's  amendment  and  decided 
in  the  negative,  .107  to  250. 

Mr.  GIuincy  said  that  if  the  old  constitution  of  1780  was  to  be 
preserved,  he  could  see  no  reason  why  the  chapter  should  not  remain. 
He  should  prefer  retaining  it  although  it  was  a  dead  letter. 

Mr.  Parker  said  if  the  chapter  was  expunged,  it  would  not  be 
necessary  to  make  a  new  draft  of  the  constitution.  The  amend- 
ments would  be  printed  at  the  end  of  the  constitution  as  it  now 
stands. 

The  question  was  taken  on  the  resolution  as  reported  by  the 
committee,  and  carried  in  the  affirmative. 

The  committee  then  rose,  and  reported  that  they  had  agreed 
to  the  resolutions  reported  by  the  select  committee  on  that  part  of 
the  constitution  relating  to  the  General  Court,  with  an  amendment 

—  that  they  had  agreed  to  the  resolution  reported  by  the  select 
committee  on  that  part  of  the  constitution  which  relates  to  the 
choice  of  a  Secretary,  &c,  with  an  amendment -r- and    that  they 


MASSACHUSETTS    CONVENTION.  105 

had  agreed  to  the  resolution  reported  by  the  select  committee  on 
that  part  of  the  constitution  relating  to  the  choice  of  delegates  to 
Congress  without  amendment. 

On  motion  of  Mr.  Fay,  it  was  ordered  that  the  reports  lie  on 
the  table. 

Mr.  Russell  of  New  Bedford  had  leave  of  absence  on  account 
of  sickness  in  his  family. 

Adjourned. 


Tuesday,  November  28. 

The  Convention  met  at  ten  o'clock,  and  after  prayers  by  the  Rev. 
Mr.  Jenks,  and  the  reading  of  yesterday's  journal, 

Mr.  Pickman  of  Salem,  from  the  committee  on  that  part  of  the 
constitution  relating  to  the  lieutenant  governor  and  council,  made 
the  following  report : 

The  committee  to  whom  was  referred  so  much  of  the  constitution  of  this  Common- 
wealth as  is  contained  in  the  second  article  of  the  second  chapter  of  the  second  part, 
and  respects  the  lieut.  governor ;  also  so  much  as  is  contained  in  the  third  section 
of  the  same  chapter,  and  respects  the  council  and  the  same  manner  of  settling  elec- 
tions by  the  Legislature,  to  take  into  consideration  the  expediency  and  propriety  of 
making  any,  and  if  any,  what  alterations  and  amendments  therein,  and  report  thereon ; 
having  attended  to  the  duty  assigned  them,  respectfully  report  —  that  in  their 
opinion,  these  branches  of  the  Government,  to  which  their  attention  has  been  called, 
have  been  found  to  answer  the  important  purposes  for  which  they  were  established. 
The  committee  therefore  do  not  think  it  expedient  to  recommend  any  essential  alter- 
ations therein.  The  amendments  which  they  have  agreed  to  propose  are  such  as 
appear  to  them  to  be  adapted  to  the  present  state  of  the  Commonwealth  ;  to  what 
seems  to  have  become  an  established  practice,  that  of  finally  electing  the  council 
from  among  the  people  at  large ;  and  to  meet  what  may  be  the  ultimate  decisions  of 
the  Convention  respecting  the  religious  test,  and  the  commencement  of  the  political 
year.  With  these  observations  the  committee  respectfully  submit  the  following  reso- 
lutions to  the  consideration  of  the  Convention. 

BENJAMIN  PICKMAN,  Chairman. 

1.  Resolved,  That  it  is  expedient  and  proper  to  alter  and  amend  the  constitution 
of  this  Commonwealth  by  striking  out,  in  the  first  article  of  the  second  section  of  the 
second  chapter  thereof,  relating  to  the  lieutenant  governor,  the  following  words 
—  "  in  point  of  religion,  property  and  residence  in  the  Commonwealth." 

2.  That  it  is  expedient  and  proper  to  amend  the  same  by  striking  out  in  the  first 
article  of  the  third  section  and  the  same  chapter  relating  to  the  council,  &c.  the 
word  "  nine"  and  inserting  "  seven,"  also  the  word  "  five"  and  inserting  "  four." 

3.  That  it  is  expedient  and  proper  to  amend  the  same  by  striking  out  the  whole 
of  the  second  article  of  the  same  section   and  inserting,  "Seven  counsellors  shall  be 

annually  chosen  from   among  the   people   at   large  on  the day  of ,  by 

the  joint  ballot  of  the  senators  and  representatives  assembled  in  one  room." 

4.  That  it  is  expedient  and  proper  to  amend  the  same  by  striking  out  in  the  fourth 
article  of  the  same  section  the  word  "  two"  and  inserting  "  one,"  also  the  word 
"  district"  and  inserting  "  county." 

5.  That  it  is  expedient  and  proper  to  amend  the  same  by  striking  out  in  the 
seventh  article  of  the  same  section  the  words  "  the  last  Wednesday  in  May,"  and 
inserting  the day  of ." 

This  report  having  been  read  was  referred  to  a  committee  of  the 
whole,  and  made  the  order  of  the  day  for  to-morrow  at  eleven  o'clock. 
14 


106  MASSACHUSETTS    CONVENTION. 

The  report  of  the  select  committee  yesterday  acted  upon  in  com- 
mittee of  the  whole  were  then  taken  up.  The  amendments  agreed 
to  in  committee  were  adopted  by  the  Convention.  The  resolves 
were  then  severally  read  a  first  time  and  ordered  for  the  second 
reading  to-morrow  at  ten  o'clock. 

Mr.  Austin  of  Boston  said,  that  yesterday,  in  commitee  of  the 
whole,  he  offered  an  amendment  to  the  report  of  the  select  com- 
mittee, which  was  not  received.  He  then  declined  to  press  the 
proposition,  and  he  now  rose  to  renew  it  with  a  trifling  variation. 
He  therefore  offered  the  following  resolution  : 

Resolved,  That  the  constitution  ought  to  be  so  amended  as  to  provide  that  the 
representatives  of  this  Commonwealth  in  the  Congress  of  the  United  States  and  * 
so  many  of  the  electors  of  president  and  vice  president  as  are  equal  to  the  number 
of  the  representatives  aforesaid,  shall  be  chosen  by  the  people  in  such  convenient 
districts  as  the  Legislature  shall  direct ;  and  the  Legislature  of  this  Commonwealth 
shall  be  required  at  their  session  next  after  every  apportionment  of  representatatives 
by  the  Congress  of  the  United  States  to  provide  by  law,  by  dividing  the  Common- 
wealth into  districts,  for  the  choice  of  not  more  than  two  representatives  or  electors 
in  any  one  district,  and  such  law  shall  not  be  repealed  or  altered  until  after  a  new 
apportionment  of  representatives  by  the  Congress  of  the  United  States. 

Mr.  Austin  said  that  the  proposition  was  one  of  great  importance 
in  principle,  and  whether  it  should  be  adopted  or  not  was  a  question 
which  required  deliberate  attention.     The  object  of  it  was  to  decide 
finally  an  important  question  which  was  continually  occurring  in 
the  Legislature.     All  other  elections  except  those  embraced  in  this 
proposition  were  fixed  by  permanent  laws,  while  these,  every  time 
they  came  round,  gave  rise  to  discussion  and  to  some  degree  of  em- 
barrassment and  confusion.     He  first  considered  the  question  in  re- 
lation to  our  own  constitution.     Gentlemen  had  expressed  a  reluc- 
tance to  change  any  part  of  the  constitution.     He  regarded  it  with 
as  much  respect  and  affection  as  any  one — but  he  did  not  think  it 
too  sacred  to  be  touched.     It  was  not  like  the  ark  of  the  covenant 
which  he  that  touched  should  die.     The  question  whether  it  should 
be  touched  had  been  settled  by  the  people.     They  had  said  it  might 
require  amendment,  and  had  for  that  purpose  chosen  delegates  to 
examine  it.     It  was  their  duty  to  examine  it  to  see  what  was  sound, 
and  what  was  unsound,  and  to  take  away  every  rotten  plank  in  the 
ship.     Some  gentlemen  had  expressed  a  reluctance  to  reject  even 
the   decayed  parts.     He  was  not  under  the  influence  of  any  such 
feelings.     The  old  landmarks,  where  our  borders  were  enlarged, 
were  of  little  consequence  except  as  matters  of  curiosity  to  the  anti- 
quary.    He  would  in  all  questions  in  relation  to  the  constitution 
imitate  the  spirit  of  the  enlightened  men  who  framed  it,  act  accord- 
ing to  their  best  judgment  of  what  was  useful,  and  if  new  and  im- 
portant  principles   have  been  taught  us  by  experience,    it  is   our 
duty  to  put  them  into  the  constitution.     He  said  that  when  he  in- 
troduced his  motion  yesterday,  it  had  been  objected  by  the  gentle- 
man from  Salem,  (Mr.  Justice  Story)  that  it  was  beyond  the  power 
of  this  Convention  to  adopt  this  regulation,  because  inconsistent 
with  the  constitution  of  the  United  States.     He  listened  with  great 


MASSACHUSETTS    CONVENTION.  107 

• 

attention  to  any  suggestion  from  that  very  learned  gentleman j  and 

upon  all  questions  of  law  he  had  been  accustomed  to  regard  his 
opinions  with  extreme  respect.  Whatever  he  said  came  with  that 
authority  that  was  apt  to  crush  all  opinions  that  came  from  a  hum- 
ble source.  But  the  most  learned  judges  may  err.  Mr.  A.  proceeded 
to  examine  the  constitution  of  the  United  Stales,  for  the  purpose  of 
inquiring  what  the  rights  of  the  states  under  it  were.  In  the  second 
section  of  that  instrument  it  is  directed  that  the  members  of  the 
house  of  representatives  shall  be  chosen  "by  the  people  of  the 
several  states;"  and  in  the  fourth  section,  that  ''the  times,  places 
and  manner  of  holding  elections  for  senators  and  representatives, 
shall  be  prescribed  in  each  state  by  the  legislature  thereof/'  No 
part  of  this  power  was  proposed  by  his  amendment  to  be  taken 
away.  The  time  of  the  election  was  slill  to  be  settled  by  the  Leg- 
islature, as  well  as  the  place  of  election,  whether  by  large  districts 
meeting  in  a  single  place,  as  is  the  practice  in  some  of  the  southern 
states,  or  in  towns.  The  manner  of  holding  the  elections  is  also 
left  to  the  Legislature  to  determine,  and  without  such  a  law  as  by 
this  proposition  is  required  to  be  passed,  the  election  could  not  be 
held.  The  proposition  is  only  that  we  shall  direct  the  Legislature 
in  the  exercise  of  the  power  which  is  given  them  by  the  constitution 
of  the  United  States.  The  provision  for  the  choice  of  electors  of 
president  and  vice  president  is  similar.  The  Constitution  requires 
that  "  each  state  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors,  &c."  The  Legislature,  if 
this  proposition  is  adopted,  will  still  exercise  all  the  rights  here  given 
to  it,  in  the  manner  in  which  they  have  been  heretofore  exercised. 
We  only  propose  to  limit  them  in  the  exercise  of  their  discretion. 
Who  can  question  the  right  of  the  people  to  instruct  the  Legislature 
in  the  manner  of  exercising  their  discretion.  The  Legislature  are 
bound  to  exercise  all  their  powers  under  the  direction  of  the  consti- 
tution. The  people  possess  the  supreme  power — 'they  have  a  right 
to  impose  this  restriction  upon  the  Legislature,  and  the  Legislature 
will  have  no  right  to  question  their  authority.  The  people  have  a 
right  to  instruct  the  members  of  their  Legislature,  and  instructions 
given  in  a  permanent  instrument  will  be  as  binding  as  if  given  for 
each  particular  occasion.  Congress  would  have  no  right  to  object 
to  this  limitation  of  the  powers  of  the  Legislature.  The  right  of 
choosing  electors  is  a  state  right,  and  Congress  has  nothing  to  do 
with  it.  This  is  not  a  new  opinion.  It  is  a  principle  that  has  been 
acted  upon.  He  cited  a  case  in  which  an  electoral  vote,  which  had 
produced  great  excitement,  was  remonstrated  against ;  a  remonstrance 
was  not  received  by  Congress  on  the  ground  that  the  right  of  choos- 
ing electors  was  a  state  right,  and  the  remonstrance  should  have 
been  made  at  home.  It  was  impossible  that  Congress  should  retuse 
to  receive  the  vote  that  should  be  given,  on  the  ground  of  interfer- 
ence with  the  powers  of  the  legislature  in  directing  the  manner 
of  election.  He  therefore  concluded  that  there  was  a  perfect 
authority  in  the  Commonwealth  to  direct,  in  their  constitution,  how 


108  MASSACHUSETTS    CONVENTION. 

the  Legislature  should  proceed  in  fixing  the  time,  place,  and  manner 
of  choosing  representatives  and  electors.  Why  then  should  it  not 
he  exercised  ?  These  were  popular  rights,  and  belonged  to  the  peo- 
ple. They  had  a  right  to  direct.  The  mode  of  election  proposed 
was  one  which  would  give  the  sense  of  the  country  in  small  districts. 
Although  the  majority  of  the  people  must  govern,  the  minority  have 
rights  which  ought  not  to  be  trampled  upon.  When  electors  and 
representatives  are  chosen  in  large  districts,  the  rights  of  the  minority 
are  destroyed.  It  is  only  by  dividing  the  State  into  small  portions 
that  there  can  be  a  fair  expression  of  public  opinion.  For  obtaining 
uniformly  this  expression  of  opinion,  he  contended  the  people  had  a 
right  to  require  the  Legislature  to  divide  the  Commonwealth  into 
small  districts.  In  regard  to  electors  there  was  a  peculiar  propriety 
in  doing  this.  The  election  was  sometimes  a  source  of  great  irrita- 
tion. For  want  of  such  a  provision,  the  state  of  New  York  in  1788 
lost  her  electoral  vote,  by  a  disagreement  about  the  mode  of  election. 
He  referred  also  to  the  great  agitation  in  1801,  when  a  decision 
on  which  the  election  of  president  was  supposed  to  depend,  was 
carried  in  the  legislature  of  Pennsylvania  by  a  single  vote — to  the 
election  in  this  State  in  1805  and  in  1812,  and  contended  that  under 
the  circumstances  of  those  cases,  which  he  stated,  much  difficulty 
and  popular  excitement  would  have  been  prevented  by  a  permanent 
provision  like  that  which  he  now  proposed.  It  was  said  that  in  this 
election  the  State  should  have  one  voice.  It  was  true  it  should  have 
but  one  voice,  if  the  people  said  so.  It  was  always  safe  to  trust  the 
people.  If  they  were  unanimous  in  their  opinion,  the  vote  should 
be  unanimous.  When  the  venerable  gentleman  who  was  chosen 
the  first  president  of  the  convention  was  candidate  for  the  presidency, 
the  electors  of  this  State  were  chosen  in  districts,  and  yet  their  vote 
was  unanimous.  It  was  not  a  sufficient  objection  that  other  states 
might  not  adopt  the  mode  of  election.  If  it  was  good  in  the  abstract 
it  was  a  sufficient  reason  for  our  adopting  it.  It  might  be  useful  to 
us  if  other  states  did  not  adopt  it.  It  would  be  useful  for  this  State 
to  set  the  example  of  adopting  the  best  mode.  It  has  been  the 
course  in  this  State  to  choose  the  representatives  in  districts.  They 
ought  always  to  be  so  chosen,  and  taken  from  different  parts  of  the 
State.  But  propositions  have  been  made  to  change  the  mode  of 
election.  He  did  not  wish  to  see  these  propositions  renewed.  Im- 
portant elections  of  themselves  afforded  grounds  enough  of  excite- 
ment, without  that  which  arose  from  a  difference  of  opinion  about 
the  mode  of  election.  The  Commonwealth  had  been  at  times  agi- 
tated by  contending  parties.  There  was  now  a  calm — but  the  storm 
might  burst  out  again.  Let  us  take  advantage  of  the  favorable  mo- 
ment to  settle  an  important  principle.  Let  it  be  understood  that 
representatives  and  electors  are  to  be  chosen  by  districts.  When 
districts  are  settled,  let  it  be  for  ten  years.  Let  there  be  no  room 
for  suspicion  that  the  mode  of  election  is  determined  upon  from  party 
motives.  For  the  reasons  which  he  had  given,  he  thought  that  the 
Convention  had  the  right,  and  possessing  the  right,  that  it  was  expe- 


MASSACHUSETTS    CONVENTION.  109 

dient  to  adopt  the  regulation  which  he  had  proposed.  If  he  was  not 
correct  in  his  views,  he  had  discharged  a  duty  in  acting  according 
to  his  own  sense  of  what  was  right  and  expedient  in  this  case. 

Mr.  Bliss  of  Springfield  inquired  whether  this  were  to  be  consid- 
as  an  original  proposition.  He  thought  it  should  be  so  considered. 
If  so,  it  should,  by  the  rules  of  the  Convention,  be  first  discussed  in 
committee  of  the  whole. 

The  President  said  that  the  proposition  was  the  same  in  sub- 
stance with  that  proposed  by  the  mover  in  committee  of  the  whole 
yesterday,  and  as  such  might  be  renewed  in  Convention. 

Mr.  Stoky  of  Salem  said — that  in  rising  to  address  the  Conven- 
tion, he  had  not  the  presumption  to  consider  himself  in  any  other 
character  than  that  of  a  citizen  and  delegate — he  had  no  right  to 
claim  and  did  not  claim  for  himself  any  official  authority,  and  his 
opinion  could  have  and  ought  to  have  no  other  weight  than  that  of 
one  zealous  for  the  public  service  and  addressing  the  judgments  of 
his  fellow-citizens.     Whatever  his  errors  might  be  in  another  place, 
(and  errors  without  doubt  he  had  committed)  they  were  not  subject 
to  revision  here.     Whatever  errors  he  might  here  commit,  he  was 
sure  will  meet  with  indulgence,  as  the  opinions  of  one,  earnest  at 
least  to  promote  the  public  interest,  and  like  the  other  members  of 
the  Convention,  solicitous  to  perpetuate  our  public  rights  and  liber- 
ties.    When  yesterday  the   learned  and  eloquent  gentleman  from 
Boston  presented  the  proposition  now  before  the  Convention  for 
consideration,  he  had  supposed  that  it  had  not  been  examined  with 
his  usual  deliberation.     I  find  myself,  said  Mr.  S.  under  a  mistake  ; 
and  his  ingenious  speech  requires  from  me  a  defence  of  the  doctrine 
which  I  then  ventured  to  suggest.     He  was  opposed  to  the  amend- 
ment  proposed  by  the  gentleman,  because  it  was  contrary  to  the 
constitution  of  the  United  States ;  and   if  it  were  not  so,  he  should 
deem  its  adoption  wholly  inexpedient.     It  was  perfectly  clear  that 
the  constitution   of  the  United  States  was  the  supreme  law  of  the 
land,  and  in  terms  it  was  so  declared  in  the  instrument  itself.     It 
was  not  within  the  legitimate  power  of  the  Legislature  of  this  Com- 
monwealth in  its  ordinary  capacity,  it  was  not  within  the  legitimate 
power  of  this  Convention,  to  violate   any  of  the  provisions  of  that 
constitution.     We  are  bound  to  obey  it,  and  should  abstain  from  all 
exercise  of  authority  which  in  any  respect  narrows  or  contracts  the 
powers  delegated  in  it  by  the  people  of  the  United  States.     The 
gentleman  would  not  differ  from  him  in  respect  to  this  doctrine. 
The  question  then  was,  whether  we  have  a  right  to  insert  in  our 
constitution  a  provision  which  controls  or  destroys  a  discretion,  which 
may  be,  nay  which  must  be  exercised  by  the  Legislature,  in  virtue 
of  powers  confided  to  it  by  the  constitution  of  the  United  States. 
The  fourth  section  of  the  first  article  of  the  constitution  of  the  United 
States  declares,  "  that  the  times,  places  and  manner  of  holding  elec- 
tions for  senators  and  representatives,  shall  be  prescribed  in  each  state 
by  the  legislature  thereof ;  but  the  Congress  may  at  any  time,  by  law, 
make  or  alter  such  regulations,  except  as  to  the  places  of  choosing  sen- 


110  MASSACHUSETTS    CONVENTION. 

ators."  Here  an  express  provision  was  made  for  the  manner  of  choos- 
ing representatives  by  the  state  legislatures.  They  have  an  unlimited 
discretion  in  the  subject.  They  may  provide  for  an  election  in  sin- 
gle districts,  in  districts  sending  more  than  one,  or  by  a  general  ticket 
for  the  whole  state.  Here  is  a  general  discretion,  a  power  of  choice. 
What  is  the  proposition  on  the  table  ?  It  is  to  limit  this  discretion, 
to  leave  no  choice  to  the  Legislature,  to  compel  representatives  to 
be  chosen  in  districts.  In  other  words,  to  compel  them  to  be  chosen 
in  a  specific  manner — excluding  all  others.  Was  not  this  plainly  a 
violation  of  the  constitution  ?  Does  it  not  affect  to  control  the  Leg- 
islature in  the  exercise  of  its  legitimate  powers  ?  Does  it  not  inter- 
fere with  the  superintending  authority  of  Congress  ?  The  gentleman 
says  and  says  truly,  that  the  Legislature  will  probably  follow  the 
rule  presented  by  his  proposition,  if  it  is  adopted  by  the  Convention 
and  ratified  by  the  people  of  the  Commonwealth.  This,  said  Mr.  S. 
is  precisely  my  objection  to  it.  The  members  of  the  Legislature 
are  under  oath  to  support  the  constitution  of  the  State.  They  are 
also  under  oath  to  support  the  constitution  of  the  United  States. 
Will  it  not  be  a  violation  of  their  oaths  to  bind  themselves  not  to 
choose  representatives  in  any  manner  that  the  constitution  of  the 
United  States  allows,  except  that  stated  in  the  gentleman's  proposi- 
tion, when  they  are  satisfied  that  the  public  interest  requires  another 
manner  of  choice  ?  They  may  bring  their  consciences  into  jeopardy 
by  such  proceedings.  It  would  be  a  direct  and  manifest  departure 
from  their  duty.  Again,  the  second  article  and  first  section  of  the 
constitution  of  the  United  States  provides,  that  "each  state  shall 
appoint,  in  such  manner  as  the  legislature  thereof  may  direct,  a 
number  of  electors  equal  to  the  whole  number  of  senators  and  repre- 
sentatives to  which  the  state  may  be  entitled  in  the  Congress/'  Here 
a  discretion  as  to  the  choice  of  electors  is  given  to  the  Legislature. 
It  is  unlimited,  yet  the  proposition  before  us  goes  directly  to  destroy 
this  freedom  of  choice,  and  compels  the  Legislature  to  resign  all 
manner  of  choice  but  one.  It  assumes  a  control  over  the  Legisla- 
ture which  the  constitution  •  of  the  United  States  does  not  justify. 
It  is  bound  to  exercise  its  authority  according  to  its  own  views  of 
public  policy  and  principle  ;  and  yet  this  proposition  compels  it  to 
surrender  all  discretion.  In  my  humble  judgment,  said  Mr.  S.,  and 
I  speak  with  great  deference  for  the  Convention,  it  is  a  direct  and 
palpable  infringement  of  the  constitutional  provisions  to  which  I 
have  referred.  He  proceeded  to  consider  the  policy  of  the  measure, 
even  supposing  it  were  constitutional.  He  was  free  to  declare  that 
his  present  opinion  was,  upon  the  best  consideration  he  could  give 
the  subject,  that  a  uniform  manner  of  choosing  representatives  and 
electors  by  districts  throughout  the  whole  of  the  United  States 
would  be  a  great  improvement  in  the  national  constitution.  He 
perfectly  concurred  in  the  gentleman's  reasoning  on  this  subject  ; 
and  if  he  held  any  station  in  which  his  voice  could  aid  such  a  meas- 
ure, he  would  most  earnestly  and  zealously  offer  it.  But,  said  he, 
the  question  now  before  us  is  not  of  this  nature.     It  goes  to  limit 


MASSACHUSETTS    CONVENTION.  Ill 

us  to  a  particular  mode  of  choice,  leaving  all  the  rest  of  the  United 
States  free  to  adopt  any  other.     What  would  be  the  consequence 
of  this  measure  ?     That  on  the  most  important  occasions  we  might 
be  deprived  of  all  the  influence  to  which  our  talents  and  character 
and  numbers,  justly  entitle  us.     It  has  been  my  melancholy  duty  in 
other  times  to  be  a  spectator  in  the  national  council  of  the  evils  of 
our  domestic  dissensions.     We  have  had  the  misfortune  to  be  placed 
there  in  a  neutralized  situation,  our  representatives  being  divided  so 
nearly  between  the  two  great  political  parties,  that  we  scarcely  had 
the  means  of  aiding  or  defeating  any  important  measure.     I  love 
my  native  State,  and  shall  never  cease  to  feel  a  deep  and  affectionate 
interest  in  its  public  character  until  I  cease  to  exist.     The  talents, 
the  virtues,  the  sound  education  and  practical  habits  of  our  citizens 
entitled  them  to  an  elevated  rank  and  influence  in  directing  the  des- . 
tinies  of  this  nation.     What  can  be  more  humiliating  or  mortifying 
than  to   see  this  influence  lost  by  our  divisions  ?     The  direct  and 
necessary  consequence  of  the  measure  now  proposed  is  to  perpetuate 
our  own  humiliation.     Why  does  Virginia  (I  speak  of  her  with  re- 
spect, )  why  does  Virginia  choose  her  electors  for  president  by  a  gen- 
eral ticket  ?     Because  she  is  determined  that  her  electors  shall  move 
in  a  solid  column  in  the  direction  of  the  majority  of  the  state.     If 
chosen  in  districts,  as  now  proposed,  her  electors  would  be  composed 
of  persons  of  different  political  opinions.     When  New  York  chooses 
electors  by  a  legislative  appointment,  is  it  not  for  precisely  the  same 
reason — to   preserve  her  legitimate  influence  in  the  Union,  and  to 
mark  her  vote  with  the  stamp  of  the  majority  ?     I  do  not  say  that 
this  is  the  right  method  of  choice.     But   it  is  one  which  the  consti- 
tution authorizes,  and  it  has  been  practised  by  various  states  in  the 
Union,  whenever  the  exigency  of  the  times  made  its  vote  of  impor- 
tance in  the  elevation  of  a  president.     Why  should  we  give  up  the 
same  privilege  ?     Upon  retaining  this  right  in  the  most  ample  man- 
ner, may  depend  the  choice  of  a  president.     Yet  we  are  now  asked 
to  bind  ourselves  to  a  mode  of  choice  which  would  neutralize  our 
votes  and  place  us  in  the  same  situation  as  if  we  had  no  vote.     It 
seems  to  me   this  is  a  sacrifice  which  we  ought  not  to  make  ;  and 
that  sound  policy  ought  to  induce  us  to  yield  up  no  privilege  which 
the  constitution  of  the  United  States  secures  to  us.     The  gentleman 
suggests  that  the  Congress  of  the  United  States  have  no  right  to  in- 
quire into  the  manner  in  which  electors  are  chosen;  and  therefore 
that  we  may  safely  adopt  the  mode    now  prescribed.      Sir,  I  doubt 
exceedingly  this  proposition  in  the  latitude  in  which  it  is  stated.     I 
do  not  know  that  Congress  have  ever  decided  that  they  have  no  au- 
thority to  inquire  behind'  the  returns  made  to  them  of  the  electors. 
Cases  of  fraud  or  of  unconstitutional  appointments  of  electors  may 
arise,  in  which  it  might  be  fit  and  proper,  and  perhaps  necessary  tor 
the  public  safety,  to  make  this  inquiry.     The  case  alluded  to  by  the 
gentleman  from  Boston,  was  not,  I  believe,  a  decision  on  this  point. 
The  question  was  not  decided,  because  it  was  not  necessary  in  that 
case  ;  for  whether  the  votes  were  counted  or  not.  the  choice  of  pres- 
ident would  not  have  been  altered. 


112  MASSACHUSETTS     CONVENTION. 

Mr.  Webster  wished  to  make  one  or  two  remarks  before  the 
gentleman  who  moved  the  amendment  replied.  Not  to  enter  into  the 
argument  on  the  question  of  our  right  to  make  such  a  provision, 
there  were  two  considerations  on  the  expediency  of  it  which  had 
weight  with  him.  The  first  was  the  general  inexpediency  of  con- 
necting the  state  constitution  with  provisions  of  the  national 
constitution.  He  thought  it  tended  to  no  good  consequence,  to  un- 
dertake to  regulate  or  enforce  rights  and  duties  arising  under  the 
general  government,  by  other  means  than  the  powers  of  that  gov- 
ernment itself.  He  would  wish  that  the  constitution  of  the  State 
should  have  as  little  connection  with  the  constitution  of  the  United 
States  as  possible.  Some  of  the  states  have  sometimes  endeavored 
to  come  in  aid  of  the  general  government,  and  to  enforce  its  laws  by 
their  own  laws.  State  statutes  had  been  passed  to  compel  compli- 
ance with  statutes  of  Congress,  and  imposing  penalties  for  the 
transgression  of  those  statutes.  This  had  been  found  to  be  very 
embarrassing,  and,  as  he  thought,  mischievous ;  because  its  tendency 
was  to  mix  up  the  two  governments,  and  destroy  the  real  essential 
distinction  which  exists  between  them.  The  true  constitutional,  har- 
monious movement  of  the  two  governments  was  as  much  interrupted 
by  their  alliance  as  by  their  hostility.  They  were  ordained  to  move 
in  different  spheres,  and  when  they  came  together,  be  it  for  the 
purpose  of  mutual  harm,  or  mutual  help,  the  system  is  deranged. 
Whatsoever  was  enjoined  on  the  Legislature  by  the  constitution  of 
the  United  States,  the  Legislature  was  bound  to  perform : — and  he 
thought  it  would  not  be  well  by  a  provision  of  this  constitution,  to 
regulate  the  mode  in  which  the  Legislature  should  exercise  a  power 
conferred  on  it  by  another  constitution.  The  other  consideration 
which  pressed  on  his  mind  was  this.  He  was  in  favor  of  a  general 
system  of  districting,  throughout  the  United  States,  for  the  choice 
of  electors.  He  supposed  the  gentleman  who  moved  this  resolution 
held  that  to  be  desirable.  But  that  could  only  be  brought  about  by 
an  amendment  of  the  United  States  constitution.  Such  an  amend- 
ment, it  was  well  known,  had  been  repeatedly  proposed  in  Congress. 
It  had,  he  believed,  more  than  once  passed  by  the  constitutional 
majority  in  the  senate.  He  hoped  it  would  also  pass  the  house  of 
representatives.  But  he  could  think  of  nothing  more  likely  to  have 
an  influence  to  prevent  it  than  the  adoption  of  this  measure.  The 
inducement  which  the  representatives  of  one  state  in  Congress  have 
to  give  up  the  power,  (and  it  was  often  an  important  power.)  of 
giving  an  undivided  vote  and  voice  in  the  choice  of  president,  was, 
that  other  states  would  give  it  up  also.  But  if  other  states  volun- 
tarily restrained  themselves,  by  their  own'  constitutions,  so  that  in 
fact  they  should  have  nothing  to  give  up,  the  inducement  was  at  an 
end.  If  every  state  in  the  Union,  except  two  or  three  of  the  largest, 
were  to  bind  themselves  to  choose  electors  by  districts,  and  these 
two  or  three  were  at  liberty  to  choose  by  general  ticket,  or  to  appoint 
by  the  Legislature,  every  one  must  see  how  far  this  would  increase 
the  actual  and  efficient  power  of  those  large  states.     In  short,  as  far 


MASSACHUSETTS    CONVENTION^  113 

as  it  is  an  object  to  possess  power  in  the  Union,  it  is  the  interesf  of 
every  state,  that  every  other  state  should  be  restrained  to  district 
elections  of  electors,  and  herself  left  free.  When  we,  therefore,  tie 
up  our  own  hands  in  this  particular,  by  our  own  constitution,  we  do 
that,  precisely,  which  those  who  wish  a  relative  increase  of  their 
own  power,  would  desire.  He  was  afraid,  in  so  acting,  we  should 
not  entitle  ourselves  to  much  character  for  foresight  or  sagacity.  As 
political  men,  desirous  of  retaining  only  the  just,  but  all  the  just 
right  and  power  of  our  constituents,  he  thought  we  ought  to  retain 
the  right  of  giving  an  undivided  electoral  vote,  until  others  also 
should  agree  to  give  up  the  same  right.  Otherwise  we  should  be 
making  a  mere  gratuity  of  that,  which  was  all  we  had  to  offer  as  an 
equivalent  for  a  highly  desirable  object  in  return. 

Mr.  Austin  requested  the  indulgence  of  the  House,  to  make  a 
few  remarks  in  reply  to  the  gentleman  who  had  opposed  his  motion. 
He  admitted  the  inexpediency  of  attempting  to  aid  the  government 
of  the  United  States.  That  government  was  strong  enough  to 
stand  by  its  own  force.  The  object  of  his  motion  was  to  arrange 
our  own  affairs.  It  was  objected  that  we  should  take  away  an 
argument  for  the  adoption  of  the  principle  generally  throughout 
the  United  States.  He  did  not  concur  in  the  justness  of  this  remark. 
He  said  we  should  have  a  solid  column  of  electors  when  we  had  a 
solid  column  of  public  opinion  ;  when  the  opinion  of  the  public  was 
divided,  it  was  not  desirable  that  we  should  have.  In  other  states 
there  was  either  a  violation  of  the  rights  of  the  minority,  or  their 
citizens  were  united  by  a  strong  force  of  interest  or  political 
feeling.  He  should  regret  the  destroying  our  influence  in  the  Union, 
but  he  would  not  force  public  opinion  by  violating  the  rights  of 
the  minority.  He  agreed  that  if  we  introduced  a  provision  into  our 
constitution,  contradicting  the  provisions  of  the  constitution  of  the 
United  States,  it  would  be  of  no  validity.  But  the  question  was, 
whether  the  constitution  of  the  United  States  would  be  violated  by 
the  amendment  offered.  If  it  were  a  proposition  to  give  to  the 
governor  and  council  the  power  of  regulating  the  elections,  it  would 
unquestionably  be  a  violation, '  because  the  Federal  constitution 
ordains  that  the  Legislature  shall  direct  as  to  the  time,  place  and 
manner  of  holding  the  elections.  By  this  proposition  the  Legislature 
will  continue  to  direct.  This  amendment  is  only  advisory  of  the 
manner  in  which  the  Legislature  shall  exercise  its  discretion.  It  is 
not  necessary  that  the  discretion  should  be  unlimited,  nor  does  the 
Federal  constitution  require  it  to  be  free  from  the  influence  contem.- 
plated  in  this  amendment. 

The  question  was  then  taken  upon  Mr.  Austin's  amendment,  and 
decided  in  the  negative.  It  was  then  ordered  that  the  report  ol  the 
committee  should  have  a  second  reading  to-morrow  at  10  o'clock. 

Mr.  Qjjincy  moved  to  take  up  the  resolution  respecting  the  crea- 
ting of  a  permanent  fund,  out  of  the  lands  of  the  Commonwealth  in 
the  state  of  Maine,  for  the  support  of  public  schools,  reported  by  the 
committee  on  that  part  of  the  constitution  which  relates  to  the  Uni- 
15 


114  MASSACHUSETTS    CONVENTION. 

versity  of  Cambridge,  and  the  encouragement  of  literature ;  but  it 
being  suggested  that  some  of  the  select  committees  were  desirous  of 
meeting,  the  motion  was  withdrawn. 
The  Convention  then  adjourned. 


Wednesday,  November  29. 

The  Convention  was  called  to  order  at  10  o'clock,  and  attended 
prayers  made  by  the  Rev.  Mr.  Palfrey. 

After  the  journal  of  yesterday  was  read,  the  resolution  respecting 
the  constitution  of  the  Legislature  by  two  branches,  reported  by  the 
committee  on  that  part  of  the  constitution  which  relates  to  the  Gen- 
eral Court,  was  read  a  second  time  and  passed.  The  second 
resolution,  reported  by  the  same  committee,  respecting  the  alteration 
of  the  time  for  the  meeting  of  the  Legislature  from  the  last  Wednes- 
day in  May  to  the  first  Wednesday  in  January,  was  read  a  second  time. 

Mr.  Q,uincy  said,  that  the  question  was,  for  substituting  a  single 
session  in  January,  for  the  two  sessions  which  were  required  by  the 
constitution  ;  in  other  words,  it  was  an  abrogation  of  the  session  in 
May.  It  had  been  passed  in  a  committee  of  the  whole,  by  a  con- 
siderable majority.  He  hoped  that  he  should  be  pardoned  in  asking 
the  House  to  review  its  decision.  He  knew  that  the  resolution  had 
the  gentleman  from  Springfield,  (Mr.  Bliss)  for  its  patron.  He  was 
sensible  that  gentleman  had  a  great  influence  in  that  body,  and 
justly  from  his  great  talents,  long  experience,  and  characteristic  in- 
tegrity. He  requested  of  that  gentleman  to  consider  the  weight 
which  was  due  to  the  arguments  which  he  should  urge.  He  asked 
no  more.  A  session  in  May  was  an  institution  of  an  antiquity  of 
nearly  two  centuries.  He  thought  the  reasons  for  changing  should 
be  great  and  general,  and  grave.  Three  general  reasons  had  been 
urged  by  the  advocates  for  the  resolution.  1st.  The  inconvenience 
to  country  gentlemen  from  the  May  session.  2d.  The  advantage 
which  resulted,  in  point  of  influence,  to  those  who  dwelt  in  this 
vicinity,  in  consequence  of  the  necessary  absence  of  country  mem- 
bers, at  the  end  of  that  session.  3d.  The  economy  resulting  from 
having  one  session,  instead  of  two.  1st.  As  to  the  inconveni- 
ence arising  to  country  gentlemen,  from  their  being  obliged  to  quit 
their  farms  in  May ;  it  was  certainly  not  excessive.  It  had  been 
the  practice  of  two  centuries.  There  had  been  no  grievous  com- 
plaint. They  had  never  been  prevented  attendance  from  any  acci- 
dents of  season  or  weather.  From  the  first  settlement  of  the  country 
to  this  hour,  the  Legislature  had  been  full  to  the  brim.  This  was  an  all 
important  fact.  It  was  the  period  at  which  the  government  was 
organized.  Full  houses,  in  both  branches,  at  the  time  of  first  or- 
ganizing the  departments,  had  always  been  secured.  This  was  the 
important  time,  more  important  than  any  subsequent  period  of  the 
session.  Because  it  evidences  that,  at  this  season,  there  is  a  certainty 
of  organizing  the  government,  according  to  the  existing  majority  in 


MASSACHUSETTS    CONVENTION.  115 

the  Commonwealth,  however  that  majority  was  constituted.  As  to 
the  effect  on  the  farming  interests,  we  have  the  experience  of  two 
centuries;  during  all  which  the  practice  had  been  uniform  ;  and  the 
prosperous  state  of  our  Commonwealth  was  proverbial.  Now  al- 
though some  inconvenience  did  exist,  he  submitted  it  to  the  good 
sense  of  the  Convention  to  consider,  whether  it  was  sufficient,  in 
itself  considered,  to  justify  so  great  an  alteration  in  the  constitution 
and  the  habits  of  our  ancestors.  The  second  reason  urged  was,  that 
it  gave  an  undue  advantage  to  those  situated  in  the  vicinity  of  the 
place  where  the  Legislature  was  holden.  If  this  was  true,  and  this 
was  a  remedy,  he  granted  that  it  was  a  good  reason.  The  fact  on 
which  the  objection  was  founded,  he  understood  to  be  stated  thus : 
"  The  country  gentlemen  from  a  distance  go  home,  towards  the  end 
of  the  May  session,  and  leave  the  decision  of  the  business  of  the 
State  to  the  gentlemen  situated  in  this  immediate  vicinity."  Now, 
if  this  is  a  fact,  it  is  a  melancholy  one.  But  if  it  be  a  fact,  is  this 
the  remedy  ?  Is  it  necessary  therefore  to  amend  the  constitution. 
He  put  it  to  the  sense  of  the  Convention  to  decide.  Is  it  not  abso- 
lutely within  the  power  of  the  Legislature  to  remedy  that  evil  ? 
1st.  By  compelling  the  attendance  of  members.  2d.  By  an  ad- 
journment before  the  mischief  occurs.  3d.  By  general  rules  and 
orders  of  both,  or  either  branch,  bringing  the  business  within  the 
time,  in  which  distant  members  could  attend.  Now  he  asked,  will 
it  be  seriously  urged  that  this  constitution  shall  be  amended  for  the 
purpose  of  remedying  an  evil,  absolutely  and  uncontrollably  already 
within  the  ordinary  powers  of  every  legislative  body  ?  But  is  it  a 
fact  ?  Can  any  gentleman  put  his  finger  upon  one  act  of  state  con- 
sequence ;  any  great  measure  effected  by  the  influences  of  this 
vicinity,  in  consequence  of  the  absence  of  country  members  ?  That 
such  may  have  happened,  in  relation  to  matters  of  local  concern,  in 
cases  of  banks,  turnpikes,  bridges,  and  the  like,  he  thought  was  very 
probable.  But  he  asked,  on  this  account,  ought  we  to  alter  the  con- 
stitution, when  the  whole  subject  is  now  actually  within  legislative 
control  ? 

Grant,  however,  that  all  the  suggestions  thus  far  made  are  true ; 
grant,  for  sake  of  argument,  that  the  May  session  does  give  undue 
advantage  ;  that  this  advantage  has  been  abused ;  that  this  abuse  is 
great  enough  to  justify  an  amendment  to  the  constitution  ;  the  ques- 
tion results,  is  the  measure  proposed  a  remedy  for  that  evil  ? 

Ho  said  that  he  had  heard  the  arguments  on  this  subject  with 
astonishment.  For  if  he  had  any  power  of  perception  concerning 
consequences,  the  interest  of  the  gentlemen  residing  in  the  country 
was  directly  the  other  way.  The  most  important  moment  of  time 
during  the  whole  session  was  that,  on  which  the  government  was 
organized :  because  on  that  depended  the  political  character  of  the 
State  for  the  year.  Now  the  question  was,  at  which  time  of  the 
year  could  the  gentlemen  from  the  country  attend  with  the  most 
convenience  and  certainty.  In  May,  when  the  season  was  settled 
and  the  communication  certain?     Or  in  January,  when  the  roads 


116  MASSACHUSETTS    CONVENTION. 

were  liable  to  be  suddenly  obstructed  ?  He  put  it  to  the  experience 
of  gentlemen,  whether  at  the  season  proposed,  a  snow  storm,  of  the 
ancient  violence  and  depth,  might  not  change  the  whole  political 
power  of  the  State.  It  is  only  rendering  the  roads  for  three  days 
impassable,  at  the  moment  preceding  the  session,  and  the  business  is 
done.  By  an  accident  of  this  kind,  concurring  with  a  contested 
election,  the  whole  political  character  of  the  Commonwealth  might 
be  changed  for  twenty  years.  At  the  May  session  there  was  liability 
to  no  accident.  He  did  not  consider  this  a  local  question.  The 
influence  and  weight  of  the  inhabitants  of  the  west  and  east,  in  all 
questions  of  state,  were  the  right  of  those  in  the  centre  of  the  Com- 
monwealth, and  he  objected  to  the  clause  on  this  ground,  that  it 
tended  to  deprive  this  part  of  the  Commonwealth  of  their  assistance, 
as  it  might  be,  in  a  case  of  extreme  difficulty.  He  thought,  in  the 
practicability  of  the  meeting  of  the  whole  Legislature  in  May,  the 
wisdom  of  our  ancestors  in  this  provision  of  the  constitution  was 
apparent. 

The  third  reason  given  was  that  of  economy.  This  was  a  high 
consideration  to  men  in  all  relations.  But  he  thought  it  was  rather 
an  affair  of  detail,  than  a  rule  to  regulate  the  principles  of  a  consti- 
tution. It  was  a  consideration  by  which  the  organs  of  a  government 
are  to  be  guided  after  they  are  formed  ;  not  a  principle  in  relation 
to  which  they  ought  to  be  constructed  and  to  be  compelled  tc  act. 
It  was  among  the  first  considerations  of  law-makers.  It  was  among 
the  last  of  constitution  makers,  or  menders.  The  reason  is  that  in 
making  a  constitution  we  are  regulating  the  principles  by  which  the 
Legislature  is  to  maintain  our  rights  and  liberties.  If,  in  establish- 
ing the  organization  of  that  Legislature,  we  make  mere  economy 
the  rule,  we  may  limit  or  embarrass  powers  which  may  be  necessary 
to  our  defence,  and  thus  endanger  objects,  infinitely  more  important 
than  any  amount  of  property  whatsoever. 

But  what  is  this  expense  ?  It  is  scarcely  more,  probably  not  more, 
than  the  travelling  expenses  of  one  session.  The  week  spent  in 
organizing  the  government  in  June,  will  be  saved  in  January. 
The  work  done  in  the  first,  will  also  be  saved,  to  the  last 
session.  In  this  connection  he  noticed  the  effect  of  having  but  one 
session  in  the  year,  in  relation  to  that  influence  of  this  vicinity,  of 
which  gentlemen  were  so  apprehensive.  The  May  session  gives 
opportunity  to  issue  notices  for  private  business,  and  enables  the 
Legislature  in  January  to  enter  upon  business  early.  But  if  such 
notices  are  not  issued  until  January,  time  must  be  given,  and  all  the 
business  thrown  into  the  last  weeks,  when  members  from  a  distance 
are  always  likely  to  be  absent ;  and  thus  the  evil  of  local  advantage 
increased,  instead  of  remedied.  He  submitted  it  to  the  Convention 
if,  after  this  examination,  either  the  arguments  from  inconvenience, 
from  undue  advantage,  or  from  economy,  were  sufficient  to  justify 
any  important  change  in  the  constitution,  much  more  such  a  change 
as  the  measure  now  proposed  was  about  to  produce  ;  a  change  in  a 
great  institution  established  by  our  anrp.stors.  at  the  first  settlement 


MASSACHUSETTS    CONVENTION.  117 

of  our  country.  He  said  that  he  knew  what  he  was  about  to  say 
might  be  treated  with  sneers  and  ridicule.  He  trusted,  however,  to 
the  candor  of  the  Convention.  The  argument  of  the  two  gentle- 
men from  Salem,  Mr.  Pickman  and  Mr.  Saltonstall,  had  been  so 
met  yesterday.  It  was  a  testimony  to  the  strength  of  those  gentle- 
men's arguments,  speaking  concerning  whom  he  said  that  he  spoke 
the  sentiments  of  every  man  who  knew  them,  when  he  said  that  for 
an  union  of  sound  heads,  with  sound  hearts,  they  were  inferior  to 
none,  and  equal  to  any  in  the  Commonwealth. 

He  asked  what  was  the  nature  of  the  institution  to  which  he 
alluded  ?  It  is  this :  The  Legislature  of  the  colony  and  of  the 
Commonwealth  have  been  accustomed  to  meet  for  two  centuries  on 
the  first  week  of  May  ;  and  in  consequence  of  the  singular  character 
of  our  ancestors,  who  were  not  a  vagrant  class,  but  associated  their 
principles  of  civil  and  religious  liberty  with  elevated  notions  of 
learning  and  intellectual  improvement,  it  became  a  custom  for  all 
the  literary,  the  religious,  and  the  charitable  institutions  of  our 
country,  which  were  of  a  general  and  state  character,  to  meet  on  the 
week  of  the  meeting  of  our  Legislature.  Accordingly,  on  this  week, 
from  the  earliest  period,  all  the  clergy,  the  learned,  the  pious,  and 
the  charitable  men  of  our  country,  made  it  a  custom,  as  far  as  it  was 
individually  convenient,  to  meet  on  that  week.  The  representation 
of  this  great  and  most  respectable  body  of  men,  was  always  numer- 
ous. And  for  what  purpose  did  they  assemble  ?  To  settle  the 
concerns'  of  their  respective  corporations,  whose  influence  and  action 
were  co-extensive  with  the  State — to  commune  with  each  other  on 
their  respective  concerns — to  have  intercourse  with  the  fathers  of 
the  State — to  receive  and  reciprocate  light  and  information — to  go 
together  to  the  temples  of  the  Most  High,  there  to  join  in  expres- 
sions of  praise  for  mercies,  and  to  supplicate  his  blessings  on  the 
coming  political  year. 

Are  such  institutions  to  be  spurned ;  are  they  to  be  slighted  :  are 
the  feelings  which  would  preserve  them  to  be  sneered  at  and  ridi- 
culed ?  If  the  State  were  destitute  of  them,  all  the  riches  in  the 
universe  could  not  replace  such  an  Institution,  supply  and  originate 
such  habits;  and  yet  we  are  about  to  throw  them  away  like 
common  dust  ? 

The  gentleman  from  Springfield  (Mr.  Bliss,)  intimates  that  these 
societies  may  have  their  meetings  in  January.  Mr.  Q,.  said  he 
should  think  this  almost  an  insult,  if  he  did  not  know  that  the  gen- 
tleman from  S.  was  incapable  of  an  insult.  He  asked — would  our 
clergy,  our  hoary-headed  literati,  our  veteran  statesmen,  leave  their 
homes  for  pleasure  and  general  intercourse,  at  the  most  uncertain 
and  inclement  season  of  the  year?  He  said  that  they  might  as  well 
take  the  warm  and  glowing  sun  of  May  from  the  sign  in  which  he 
predominates  at  that  season,  and  place  him  in  the  sign  which  rules 
the  inverted  year :  as  well  take  the  flowers  and  green  surface  of 
June,  and  spread  them  as  a  carpet  in  January,  as  transfer  the  insti- 
tutions of  the  former  period  to  those  of  the  latter.     It  could  not  be 


118  MASSACHUSETTS    CONVENTION. 

done.  Nature  is  against  it.  This  resolution  annihilates  the  whole 
institution.  And  what  do  you  annihilate?  An  unmeaning  cere- 
mony ?  An  useless  pageantry  ?  No — but  a  substantial,  moral,  and 
intellectual  and  political  blessing  ;  such  as  no  other  State  does  pos- 
sess ;  characteristic  of  our  ancestors ;  their  glory ;  associated  with 
all  our  prosperity,  political,  social,  and  literary,  and  cause  of  much 
of  it. 

Mr.  Q,.  asked  if  ever  there  was  an  institution  in  the  world  better 
calculated  to  keep  alive  these  sympathies,  to  make  learning,  relig- 
ion and  good  morals  honored,  and  become  the  foundation  of  soci- 
ety;  and  so  constituted  as  to  have  chief  effect  on  the  political 
birth-day  of  the  State — making  a  holiday  over  the  whole  State, 
and  a  jubilee  for  the  metropolis. 

He  said  that  he  wished  that  the  venerable  gentleman  on  the 
right  of  the  chair,  (Mr.  Adams,)  to  whom  nature  had  left  at  the  age 
of  eighty-six  years,  the  unabated  vigor  of  his  intellect,  had  also 
been  permitted  to  have  retained  the  unabated  power  of  his  ancient 
eloquence  and  voice.  He  wished  that  every  gentleman  in  the  Con- 
vention could  have  heard  him  say,  as  he  had  yesterday,  that  gen- 
tlemen did  not  realize  the  consequences  of  the  measure. 

(Here  Mr.  Blake  interrupted  Mr.  Q,.,  and  called  him  to  order — 
that  it  was  not  in  order  for  one  gentleman  to  state  what  another 
had  said.) 

Mr.  Q,.  said  he  had  no  authority  to  repeat  what  the  venerable 
gentleman  had  said,  but  presumed,  as  he  was  present,  it  was  in 
order. 

The  Chair  decided  that  Mr.  Q,.  was  not  in  order. 

Mr.  Q,.  said,  that  although  he  differed  from  the  Chair,  in  point  of 
order,  yet  that  he  had  too  great  respect  for  the  gentleman  who 
filled  it,  to  appeal — and  that  he  had  finished  all  the  general  obser- 
vations he  intended  to  make. 

Mr.  S locum  of  Dartmouth  said  that  he  rose  with  great  coolness 
and  little  animation  on  this  occasion.  While  the  gentleman  from 
Boston  was  speaking,  he  sometimes  threw  a  mist  before  him,  and 
he  (Mr.  S.)  sometimes  thought  he  should  vote  with  that  gentleman. 
But  the  mist  was  now  dissipated,  and  he  could  see  the  interest  of 
his  constituents.  The  gentleman  dealt  in  Maypoles  and  flowers, 
and  he  was  willing  he  should  have  them,  but  he  should  have  them 
on  his  own  territories,  and  not  at  the  expense  of  the  State.  The 
question  was,  whether  it  was  best  to  have  two  sessions  or  one.  It 
would  be  a  great  saving  to  have  but  one.  If  the  Legislature  were 
not  able  to  "do  the  business  in  one  session  in  a  year,  they  might 
adjourn,  and  if  there  was  a  majority  in  favor  of  meeting  in  May, 
they  might  adjourn  to  that  time.  He  hoped  therefore  that  the  res- 
olution would  pass. 

Mr.  Foster  of  Littleton  said,  that  as  a  member  of  the  Massachu- 
setts Charitable  Congregational  Society,  he  would  say  a  few  words. 
The  people  of  Massachusetts  iiad  shown  a  degree  of  kindness  and 
hospitality  not  manifested  by  the  people  of  any  other  State.     He 


MASSACHUSETTS    CONVENTION.  119 

wished  to  acknowledge  it  with  gratitude.  At  the  annual  conven- 
tion of  the  clergy,  they  always  experienced  the  great  munificence 
of  the  inhabitants  of  Boston.  But  he  did  not  think  that  those  who 
received  this  charity,  would  suffer  from  changing  the  time  of  the 
annual  convention  of  the  clergy  from  May  to  January.  On  the 
contrary,  he  thought  they  might  get  more  money  in  the  winter.  It 
was  a  time  when  people  in  general  had  more  to  give. 

Mr.  Pickman  of  Salem  inquired  whether  the  present  vote  on  the 
resolution  was  to  be  final,  and  being  answered  from  the  Chair  that 
it  was,  he  moved  that  when  the  question  should  be  taken,  it  should 
be  by  yeas  and  nays.  He  was  aware  that  it  would  take  up  some 
time,  but  he  thought  the  final  question  on  every  considerable 
amendment,  should  be  by  yeas  and  nays.  There  were  many 
modest  gentlemen  who  refrained  from  speaking  on  questions,  who 
would  nevertheless  wish  that  their  constituents  might  know  how 
they  voted. 

Mr.  D.  Webster  of  Boston  said  he  knew  it  was  proper  not  to  debate 
the  question  of  taking  the  yeas  and  nays,  but  he  rose  to  a  point  of 
order,  in  consequence  of  what  fell  from  the  Chair.  He  apprehended 
that  all  the  amendments  which  should  be  adopted,  would  require  to 
be  put  into  the  form  of  articles,  and  suggested  that  the  gentleman 
from  Salem  would  attain  his  object  if  the  yeas  and  nays  should  be 
taken  on  the  final  adoption  of  those  articles. 

(The  President  explained — he  meant  that  the  vote  was  final  on 
the  resolution  in  its  present  shape.) 

Mr.  Pickman  said  that  he  only  wished  each  member  should  have 
an  opportunity  of  recording  his  vote  at  some  time  or  other,  and  he 
withdrew  his  call  for  the  yeas  and  nays. 

Mr.  Qjjincy  renewed  it.  He  said  that  this  vote  decided  the  prin- 
ciple, and  no  gentleman  on  a  subsequent  vote,  would  wish  to  record 
his  opinion  in  opposition  to  a  principle  which  had  already  been 
finally  settled  by  the  Convention. 

Mr.  Dana  agreed  in  the  views  which  had  been  expressed  by  the 
gentleman  last  speaking. 

Mr.  Dawes  of  Boston  said  that  he  should  have  been  astonished, 
but  he  remembered  a  rule  of  Dr.  Franklin  not  to  be  astonished  at 
anything — he  was  disappointed  to  hear  the  motion  of  the  gentleman 
from  Salem — he  was  pleased  when  he  withdrew  it — and  it  was 
with  grief  that  he  heard  it  renewed  by  his  highly  respected  col- 
league. He  said  he  considered  it  a  question  whether  they  should 
sit  all  winter,  if  this  resolution  and  twenty  others,  were  to  be  de- 
cided by  yeas  and  nays.  He  said  he  did  not  like  the  rule  that  a 
fifth  part  of  the  members  should  be  at  liberty  to  demand  the  yeas 
and  nays.  It  was  holding  a  rod  over  gentlemen,  and  telling  them 
"  if  you  do  not  vote  as  I  choose,  your  constituents  shall  know  it." 

The  President  said  that  the  question  of  taking  the  vote  by  yeas 
and  nays,  should  be  decided  without  debate. 

Mr.  Dawes  said,  If  I  had  known  that,  I  would  not  have  said 
a  word. 


120  MASSACHUSETTS    CONVENTION. 

Mr.  Qjjincy  said  that  he  did  not  wish  to  push  the  motion  in  op- 
position to  the  opinions  of  other  gentlemen  about  him,  and  he  with- 
drew it. 

Mr.  Dana  then  renewed  the  motion.  The  question  was  taken  on 
the  motion  for  taking  the  vote  by  yeas  and  nays,  and  carried. 

The  resolution  was  then  read. 

Mr.  Prince  of  Boston  said  that  he  expected  there  would  be  con- 
flicting interests  in  the  House,  and  he  wished  to  meet  them  in  a 
spirit  of  conciliation.  From  the  expression  of  opinion  which  had 
already  been  given  on  this  question,  he  was  satisfied  that  this  reso- 
lution would  meet  the  views  of  his  brethren  from  the  country,  and 
he  should  for  that  reason  give  his  vote  in  favor  of  it. 

Mr.  Little  of  Newbury  said  that  ever  since  the  origin  of  the 
Commonwealth,  the  Legislature  had  met  in  May,  and  he  had  heard 
no  complaint  of  it.  If  we  were  now  to  change,  he  wished  it  to  be 
considered  that  it  was  because  we  were  wiser  than  all  our  forefath- 
ers had  been.  But  a  single  reason  had  been  given  in  favor  of  it — 
it  would  save  the  expense  of  travelling.  He  proceeded  to  make 
some  statements  of  the  amount  of  expense  in  different  sessions, 
within  the  last  ten  years.  He  thought  it  would  be  inconvenient  to 
transact  all  the  business  at  the  winter  session,  and  if  they  should 
have  occasion  to  adjourn,  they  could  not  adjourn  to  a  more  conve- 
nient day  than  the  last  Wednesday  in  May.  He  had  been  a  farmer 
for  many  years,  and  he  knew  that  this  was  a  season  when  business 
was  least  urgent. 

Mr.  Walker  of  Templeton  said  that  the  only  question  was, 
whether  the  change  would  produce  a  saving  of  expense — all  other 
considerations  should  be  laid  out  of  view.  He  considered  the  meet- 
ing in  May  as  a  mere  ceremony,  which  could  easily  be  dispensed 
with.     He  thought  it  a  self-evident  proposition. 

Mr.  Pickman  thought  it  might  be  shown  that  expense  would  be 
saved  by  having  two  sessions  instead  of  one.  Every  gentleman  who 
had  had  any  experience  in  the  Legislature,  must  know  that  much 
time  was  taken  up  in  organizing  the  government — it  was  not  a 
mere  ceremony — it  was  a  duty  imposed  by  the  constitution  itself. 
The  days  were  so  much  longer,  and  the  transaction  of  business  so 
much  easier,  that  one  day  in  May  was  worth  two  in  January  for 
this  purpose.  He  spoke  from  experience,  and  appealed  to  gentle- 
men who  had  been  in  the  Legislature.  To  perforin  the  same 
service,  several  days  longer  would  be  required  in  the  winter  than  at 
the  usual  date  of  the  summer  session — and  enough  to  make  the 
whole  difference  of  the  expense  of  travelling.  He  suggested  an- 
other argument  against  the  change.  This  was  but  a  part  of  a 
system.  If  the  session  of  the  Legislature  was  altered,  the  period  of 
all  elections  must  be  altered.  The  gentleman  from  Springfield 
had  told  us  that  the  people  would  attend  to  their  private  business, 
to  the  neglect  of  the  public.  What  would  be  the  consequence  of 
transferring  the  business  of  the  elections  from  the  spring,  a  period 
of  comparative  leisure,  to  the  autumn,  when  all  are  occupied.     The 


MASSACHUSETTS    CONVENTION.  121 

session  also  would  be  so  prolonged,  from  having  all  the  business  of 
the  year  crowded  into  it,  that  it  would  extend  into  the  spring,  and 
gentlemen  would  have  the  same  temptation  to  desert  their  duty,  as 
in  May. 

Mr.  Lincoln  of  Worcester  rose  to  make  a  single  remark,  and  he 
would  endeavor  that  what  he  should  say,  should  be  remarkable  for 
its  brevity,  if  it  was  not  for  its  solidity,  on  this  as  well  as  on  all 
other  occasions.  He  considered  the  question  important  to  the  inter- 
ests of  the  country,  and  he  wished  to  express  what  he  believed  to 
be  the  sentiments  not  only  of  his  constituents,  but  of  other  gentle- 
men in  the  same  paft  of  the  Statef  He  had  hoped  the  gentleman 
from  Springfield  would  have  replied  to  the  remarks  of  the  gentle- 
man from  Boston.  He  would  have  done  it  in  a  manner  more  satis- 
factory than  he  (Mr.  L.)  was  able  to  do  it.  He  professed  as  much 
respect  for  the  present  constitution  as  any  member  of  the  Conven- 
tion, but  he  was  sorry  to  hear  the  expression  of  any  sentiment  that 
should  sanction  the  opinion  that  no  improvement  could  be  made  to 
correspond  with  the  progress  of  society.  The  present  constitution, 
at  the  time  of  its  adoption,  was  but  an  experiment.  The  framers  of 
it  could  not  anticipate  what  would  be  the  effect  of  every  part  of  it. 
He  thought  that  on  this  question  there  were  imperative  reasons  for 
a  change.  He  differed  from  the  opinion  expressed  by  the  gentle- 
man from  Salem,  that  it  would  produce  no  saving  of  money.  His 
reasoning  was  predicated  on  the  supposition  that  much  time  would 
be  necessary  in  organizing  the  government.  It  was  true  that  here- 
tofore much  had  been  necessary.  Time  had  been  wastefully  and 
uselessly  expended  in  the  legislative  mockery  of  electing  members 
of  the  council  from  the  senate,  merely  to  give  them  opportunity  to 
decline.  The  houses  had  been  employed  day  after  day,  in  supply- 
ing the  vacancies.  All  this  time,  he  trusted,  would  now  be  saved. 
Whole  days  were  occupied  in  choosing  notaries  public,  in  conven- 
tion of  the  two  houses,  but  he  trusted  that  with  the  amendments 
which  should  be  adoped,  little  time  would  be  requisite  for  organiz- 
ing the  government.  The  argument  of  the  gentleman  was  there- 
fore without  foundation,  which  otherwise  would  have  been  of  great 
force.  He  proceeded  to  reply  to  the  remarks  of  the  gentleman  from 
Boston,  (Mr.  Q,uincy.)  He  had  expressed  a  great  regard  for  the  in- 
terests of  the  country  ;  he  knew  him  too  well  to  doubt  that  he  was 
perfectly  sincere  in  his  remarks,  but  he  could  assure  him,  that  the 
people  from  the  country  would  have  opportunity  to,  attend  to  their 
own  rights.  Snow  storms  were  not  so  dreadful  as  seemed  to  be 
imagined.  The  people  were  familiar  with  them,  and  they  seldom 
prevented  the  passing  from  one  end  of  the  State  to  the  other.  He 
recollected  but  one  instance  when  the  travelling  had  been  entirely 
obstructed  by  snow,  which  was  in  the  year  of  the  adoption  of  the 
constitution.  But  suppose  it  to  happen  more  frequently,  the  argu- 
ment is  inconclusive,  unless  it  can  be  shown  that  the  roads  may  not 
be  broken  up  by  freshets  in  the  spring — that  there  may  not  be  earth- 
quakes in  May — that  the  bridges  may  not  be  carried  off  by  floods. 
16 


122  MASSACHUSETTS    CONVENTION. 

He  contended  that  it  would  be  more  convenient  to  assemble  in  Jan- 
uary than  in  May.     A  great  'part  of  the  members  of  the  Legislature 
came  from  agricultural  parts  of  the  Commonwealth,  where  May  and 
June  are  among  the  most  busy  months  in  the  year.     The  seed  is 
put  into  the  ground  as  early  as  May  ;  it  soon  requires  weeding,  and 
the  first  and  second  hoeing  is  hardly  finished,  before  the  gathering 
of  the  hay  begins.     Hay  is  begun  to  be  cut  in  Hampshire  county, 
as  early  as  June  ;   in  Worcester,  in  June  or  the  beginning  of  July. 
It  is  inconvenient  for  gentlemen  engaged  in  these  pursuits,  to  leave 
their  homes  to  attend  the  General  Court.    It  has  resulted  from  these 
causes,  that  it  has  been  indispensable  in  the  Spring  session  of  the 
General  Court,  either  to  transact  business  in  a  thin  house,  or  adjourn 
to  the  winter,  when  the  agricultural  business  of  the  year  is  finished, 
and  those  who  are  engaged  in  these  pursuits,  are  at  leisure.     As  to 
the  charitable  institutions  which  hold  their  anniversary  meetings  at 
the  time  of  election,  if  they  were  necessarily  connected  with  the 
session  of  the  Legislature,  they  might  meet  as  well  in  January  as 
in  May.     The  snow  which  then  covered  the  ground,  served  rather 
to  facilitate  than  to  impede  travelling,  and  the  members  of  the  Leg- 
islature in  coming  to  the  capital,  might  bring  with  them  their  min- 
ister or  other  persons,  with  greater  ease  than  at  another  season.    But 
he  did  not  think  there  was  much  force  in  this  argument,  on  one 
side  or  the  other.     He  placed  the  question  on  the  ground  of  expe- 
rience.    He  insisted  that  it  was  more  convenient  to  have  but  one 
session,  and  to  have  that  begin  in  January ;  and  for  this  reason  he 
should  vote  for  the  resolution. 

The  yeas  and  nays  were  then  taken  on  the  adoption  of  the  reso- 
lution and  it  was  decided  in  the  affirmative — 

Yeas  408.  Nays — Messrs.  Abbot,  Adams  John,  Adams  Josiah, 
Allyne,  Andrews,  Bartlett  Wm,  Bacon,  Banister,  Bond  George, 
Bolyston,  Blood,  Cotton,  Cleveland,  Crawford,  Crehore,  Davis  John, 
Estabrook,  Frazer,  Hale  Nathan,  Hall  Nathaniel,  Heard,  Hoar 
Samuel,  jr.,  Hooper,  Hunewell  Jonathan,  jr.,  Jackson  Joseph,  Little 
Moses,  Little  Josiah,  Morton  Perez,  Messinger,  Noyes  Nathan, 
Pierce  Varney,  Perley,  Phillips  Wm.,  Phillips  John,  Perham,  Pick- 
man,  Quincy,  Richardson  James,  Richardson  Eli,  jr.,  Russell  Ben- 
jamin, Saunders,  Saltonstall,  Shillaber,  Shaw,  Sturgis,  Storrs,  Sulli- 
van Richard,  Taft,  Tuckerman,  Tilden  Joseph,  Thorndike,  Ware, 
Wade  Nathaniel,  Ward,  Wells  Samuel  A.,  Webster  Redford — 56. 
Absent  25. 

The  third  resolution  reported  by  the  same  committee,  respecting 
the  limitation  of  the  time  for  the  governor's  returning  bills  and  re- 
solves sent  to  him  by  the  Legislature  for  his  approbation,  Avas  read 
a  second  time  as  amended  in  committee  of  the  whole,  and  passed. 

The  resolution  for  striking  out  "  commissary  general,  notaries 
public,  and  naval  officers"  in  ch.  2,  sect.  4,  art.  1,  reported  by  the 
committee  on  the  part  of  the  constitution  which  respects  the  secre- 
tary, &c,  and  amended  in  committee  of  the  whole,  was  read  a  sec- 
ond time. 


MASSACHUSETTS     CONVENTION.  123 

• 

Mr.  Fay  of  Cambridge  observed  that  there  was  no  provision  in 
the  constitution  for  supplying  any  vacancies  which  may  happen, 
during  the  recess  of  the  Legislature,  in  the  offices  of  secretary  and 
treasurer,  and  he  wished  therefore  to  amend  the  resolution,  so  as  to 
provide  that  such  vacancies  should  be  supplied  by  the  governor, 
with  the  advice  and  consent  of  the  council.  He  said  a  law  passed 
in  1792,  authorizing  the  governor,  with  the  advice  of  the  council, 
to  declare  a  vacancy  in  the  office  of  treasurer,  and  to  take  proper 
steps  for  the  security  of  the  public  papers  and  property  until  the 
Legislature  should  assemble.  But  the  Legislature  did  not  consider 
it  competent  to  them  to  delegate  their  power  to  appoint  a  successor. 
A  provision  of  the  kind  proposed -was  the  more  necessary,  since  it 
was  contemplated  to  have  but  one  session  of  the  Legislature  in  a 
year.  With  respect  to  the  secretary,  a  law  was  passed  in  1813,  au- 
thorizing his  deputies  to  act  in  such  a  case.  This  was,  in  fact,  ena- 
bling the  secretary  to  appoint  his  successor ;  a  proceeding  which 
was  contrary  to  the  principles  of  our  constitution. 

The  president  doubted,  on  a  point  of  order,  the  propriety  of  tak- 
ing up  a  new  subject  which  had  not  been  debated  in  committee  of 
the  whole,  and  suggested  that  the  proposed  amendment  should  be 
referred  to  the  select  committee  on  the  part  of  the  constitution 
which  respects  the  governor. 

Mr.  Fay  said  he  was  aware  that  it  might  be  referred  to  that  com- 
mittee, or  to  a  committee  of  the  whole.  He  had  had  an  intention 
of  introducing  the  subject  in  the  committee  respecting  the  governor, 
as  he  happened  to  be  one  of  the  committee,  but  on  further  consider- 
ation he  thought  the  proper  place  for  the  provision  would  be  in  the 
article  respecting  the  secretary,  &c.  Upon  a  suggestion  from  Mr. 
Webster  of  a  proposition  he  intended  to  make,  Mr.  Fay  withdrew 
his  motion. 

The  question  was  then  taken  on  passing  the  resolution,  and  de- 
cided in  the  affirmative. 

The  resolution  reported  by  the  committee  on  the  part  of  the  con- 
stitution respecting  delegates  to  congress  was  then  taken  up. 

Mr.  Morton  of  Dorchester  renewed  the  motion  he  had  made  in 
committee  of  the  whole  to  amend  the  resolution  by  striking  out 
"expunged  therefrom,"  and  adding  a  provision  that  our  senators 
and  representatives  in  congress  should  be  furnished  with  certificates 
under  the  hand  of  the  governor,  &c.  He  objected  to  striking  out 
a  whole  chapter  from  the  constitution,  as  the  resolution  proposes, 
and  he  doubted  of  the  power  of  the  Convention  to  do  it  under  their 
authority  to  alter  and  amend  only. 

The  question  was  taken  on  Mr.  Morton's  amendment  and  lost. 
Considerable  debate  arose  upon  the  concluding  words  of  the  res- 
olution,  "expunged    therefrom,"    and  motions   were    successively 
made  to  substitute  "annulled,"  and  "become  inoperative,"  and  to 
lay  the  resolution  upon  the  table ;  all  of  which  were  lost. 

The  question  was  then  taken  upon  passing  the  resolution,  and 
decided  in  the  affirmative. 

On  motion  of  Mr.  Webster,  it  was  ordered  that  the  several  com- 


124  MASSACHUSETTS     CONVENTION. 

mittees  appointed  in  pursuance  of  the  various  resolutions  adopted 
on  the  17th  inst.  be  standing  committees  until  the  end  of  the  ses- 
sion. 

On  motion  of  Mr.  Fay,  of  Cambridge,  it  was  then 

Resolved,  That  the  committee  on  so  much  of  the  constitution  as  relates  to  the  sec- 
retary, treasurer,  &c,  be  directed  to  consider  the  propriety  and  expediency  of  so 
altering  the  same,  as  that  in  case  either  of  the  offices  within  the  appointment  of  the 
Legislature  shall  become  vacant  from  any  cause  during  the  recess  of  the  General 
Court,  the  governor,  with  the  advice  and  consent  of  the  council,  under  such  regula- 
tions as  may  be  prescribed  by  law,  shall  appoint  and  commission  a  fit  and  proper 
person  to  fill  such  vacant  office,  who  shall  perform  the  duties  thereof  until  a  suc- 
cessor shall  be  appointed  by  the  General  Court. 

Mr.  Webster,  from  the  committee  on  the  10th  resolution  passed 
on  the  17th  inst.,  submitted  the  following  reports: 

The  committee  to  whom  it  was  referred  to  consider  whether  any,  and  if  any,  what 
alterations  or  amendments  it  is  proper  and  expedient  to  make  in  so  much  of  the  con- 
stitution as  is  contained  in  the  sixth  chapter  of  the  second  part,  and  respects  oaths 
and  subscriptions,  &c,  ask  leave  to  report  the  following  resolutions : 

Resolved,  That  it  is  expedient  so  far  to  alter  and  amend  the  constitution,  as  to  pro- 
vide, that  instead  of  all  oaths,  declarations  and  subscriptions  now  required,  all  per- 
sons chosen  or  appointed  to  any  office,  civil  or  military,  under  the  government  of  this 
Commonwealth,  shall,  before  they  enter  on  the  duties  of  their  office,  take  and  sub- 
scribe the  following  oath  of  allegiance,  and  oath  of  office,  viz.: 

"I,  A.  B.  do  solemnly  swear,  that  I  will  bear  faith  and  true  allegiance  to  the  Com- 
monwealth of  Massachusetts,  and  will  support  the  constitution  thereof.  So  help  me 
God." 

OATH    OF     OFFICE. 

"  I,  A.  B.  do  solemnly  swear — that  I  will  faithfully  and  impartially  discharge  and 
perform  all  the  duties  incumbent  on  me  as according  to  the  best  of  my  abili- 
ties and  understanding,  agreeably  to  the  rules  and  regulations  of  the  constitution 
and  the  laws  of  this  Commonwealth.  So  help  me  God.''''  Provided,  that  whenever 
any  person,  chosen  or  appointed  as  aforesaid,  shall  be  of  the  denomination  called 
Quakers,  and  shall  decline  taking  said  oaths,  he  shall  make  his  affirmation  in  the 
foregoing  form,  omitting  the  word  "  swear"  and  inserting  instead  thereof  the  word 
" affirm,"  and  omitting  the  words  "  So  help  me  God"  and  subjoining  instead  thereof 
the  words  "  This  I  do  under  the  pains  and  penalties  of  perjury." 

2.  Resolved,  That  it  is  proper  and  expedient  further  to  amend  the  constitution,  so 
as  to  provide  that  no  judge  of  any  court  in  this  Commonwealth  and  no  person  hold- 
ing an  office  under  the  authority  of  the  United  States,  (postmasters  excepted)  shall  at 
the  same  time  hold  the  office  of  governor,  lieutenant  governor  or  counsellor,  or  have  a 
seat  in  the  senate  or  house  of  representatives  of  this  Commonwealth,  and  that  no 
judge  of  any  court  in  this  Commonwealth,  the  attorney  general,  solicitor  general, 
clerk  of  any  court,  sheriff,  treasurer  or  receiver  general,  register  of  probate,  reg- 
ister of  deeds,  shall  continue  to  hold  his  said  office  after  being  elected  a  member  of 
the  congress  of  the  United  States  and  accepting  that  trust ;  but  the  acceptance  of 
that  trust  by  any  officer  aforesaid  shall  be  deemed  and  taken  to  be  a  resignation  of 
his  said  office  ;  and  that  judges  of  the  courts  of  common  pleas  shall  hold  no  other 
office  under  the  government  of  this  Commonwealth,  the  office  of  justice  of  the  peace, 
and  militia  offices  excepted. 

3.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  con- 
stitution of  this  Commonwealth,  so  as  to  provide  that' if  at  any  time  hereafter  any 
specific  and  particular  amendment  or  amendments  to  the  constitution  be  proposed  in 
the  General  Court,  and  agreed  to  by  two  thirds  of  the  members  of  each  house,  pre- 
sent and  voting  thereon;  such  proposed  amendment  or  amendments  shall  be  entered 
on  the  journals  of  the  two  houses,  and  referred  to  the  General  Court  next  to  be 
chosen,  and  shall  be  published  ;  and  if  in  the  General  Court  next  to  be  chosen  as 
aforesaid,  the  said  proposed  amendment  or  amendments  shall  be  agreed  to  by  two 
thirds  of  the  members  of  each  house  present  and  voting  thereon,  then  it  shall  be 
the  duty  of  the  General  Court  to  submit  such  proposed  amendment  or  amendments 


MASSACHUSETTS    CONVENTION.  125 

to  the  people  ;  and  if  approved  and  ratified  by  a  majority  of  the  qualified  voters,  at 
meetings  legally  warned  and  holden  for  that  purpose,  the  same  shall  become  part  of 
the  constitution  of  this  Commonwealth. 

For  the  committee,  DANIEL  WEBSTER. 


The  committee  on  so  much  of  the  constitution  as  is  contained  in  the  sixth  chapter 
of  the  second  part,  and  who  were  instructed  to  inquire  into  the  expediency  and  propri- 
ety of  so  amending  the  constitution  as  to  authorize  the  General  Court  to  grant  to 
towns,  in  certain  cases,  the  powers  and  privileges'  of  a  city  government,  ask  leave  to 
report  the  following  resolution : 

Resolved,  That  it  is  proper  to  and  expedient  so  far  to  amend  the  constitution,  as  to 
provide  that  the  General  Court  shall  have  full  power  and  authority  to  erect  and  con- 
stitute municipal  or  city  governments  in  any  corporate  town  or  towns  in  this  Com- 
monwealth ;  and  to  grant  to  the  inhabitants  thereof  such  powers,  privileges  and  im- 
munities not  repugnant  or  contrary  to  this  constitution,  as  the  General  Court  shall 
deem  expedient  or  necessary  for  the  regulation  and  government  thereof;  and  to  pre- 
scribe the  manner  of  calling  and  holding  public  meetings  of  the  inhabitants  for  the 
election  of  officers  under  the  constitution :  Provided,  that  no  such  government 
shall  be  erected  or  constituted  in  any  town  not  containing inhabitants  ;  nor  un- 
less it  be  with  the  consent  and  on  the  application  of  a  majority  of  the  voters  of  such 
town  qualified  to  vote  in  town  affairs. 

For  the  committee,  DANIEL  WEBSTER. 


The  committee  on  so  much  of  the  constitution  as  is  contained  in  the  sixth  chapter 
of  the  second  part,  and  who  were  instructed  "  to  take  into  consideration  the  expedi- 
ency of  so  amending  the  constitution  as  to  insert  therein  a  provision  substituting 
affirmations  for  oaths  in  all  cases  whatsoever,  where  the  party  shall  entertain  re- 
ligious scruples  in  regard  to  taking  oaths,"  ask  leave  to  report  the  following  resolu- 
tion : 

Resolved,  That  it  is  not  expedient  to  make  any  further  provision  by  the  constitu- 
tion, relative  to  the  substitution  of  affirmations  for  oaths. 

For  the  committee,  DANIEL  WEBSTER. 

These  reports  were  severally  read,  ordered  to  be  printed,  referred 
to  a  committee  of  the  whole  house,  and  made  the  order  of  the  day 
for  Friday,  at  10  o'clock. 

The  House  adjourned. 


Thursday,  November  30. 

The  Convention  met  according  to  adjournment,  and  attended 
prayers  made  by  Rev.  Mr.  Palfrey.  The  journal  of  yesterday's 
proceedings  was  read. 

Mr.  Jackson  of  Boston  offered  the  following  resolution  : 

Resolved,  That  a  committee  be  appointed  to  consider  in  what  manner  sucli  amend- 
ments in  the  present  constitution  of  government  of  the  Commonwealth,  as  may  be 
made  and  proposed  by  this  Convention,  shall  be  submitted  to  the  people  for  their 
ratification  and  adoption,  and  in  what  manner  their  votes  thereon  shall  be  returned, 
and  the  result  ascertained. 

He  stated,  that  his  object  in  making  this  motion,  was  to  remove 
a  difficulty  which  had  frequently  occurred  in  the  course  of  the  de- 
bate, from  an  uncertainty  with  respect  to-  the  form  to  which  the 
amendments  agreed  to  by  the  Convention  should  be  reduced.  For 
his  part  he  had  no  doubt  of  the  course  proper  to  be  pursued.  He 
thought  that  they  had  no  authority  under  the  act  under  which  they 


126  MASSACHUSETTS    CONVENTION. 

were  convened,  to  reduce  the  constitution  to  a  new  draft,  and  if  they 
had  the  power,  he  should  not  think  it  proper  to  exercise  it.  In  that 
case,  when  the  amended  constitution  was  submitted  to  the  people, 
they  would  be  obliged  to  accept,  or  reject  the  whole.  He  thought 
it  the  most  proper  mode  to  propose  the  several  amendments  dis- 
tinctly, so  that  when  submitted  to  the  people,  they  may  act  upon 
each  specific  amendment,  and  adopt  or  reject  them,  according  to 
their  judgment  of  each.  Otherwise  they  might  reject  the  whole, 
on  account  of  their  objection  to  a  particular  article,  and  thus  they  ■ 
would  fail  of  their  object,  and  all  the  labor  of  the  Convention 
would  be  lost.  He  had  thought  that  the  subject  might  be  referred 
to  the  chairmen  of  the  several  standing  committees,  but  they  had 
not  yet  all  reported,  and  were  therefore  otherwise  occupied.  It 
would  then  be  necessary  to  appoint  a  special  committee  for  the 
purpose,  and  for  that  object  he  submitted  the  resolution. 

The  resolution  was  then  read  and  adopted,  and  it  was  ordered  that 
the  committee  should  consist  of  five  members  : 

The  Hon.  Judge  Jackson,  of"  Boston  ;  Judge  Wilde,  of  New- 
buryport ;  Mr.  L.  Lincoln,  of  Worcester ;  Woodbridge,  of  Stock- 
bridge  ;  and  Holmes,  of  Rochester,  were  appointed. 

Mr.  Pickman  of  Salem,  from  the  committee  on  the  part  of  the 
constitution  relating  to  the  lieutenant  governor  and  council,  called 
up  the  report  of  that  committee,  which  was  on  Tuesday  referred  to 
the  committee  of  the  whole,  and  made  the  order  of  the  day  for  11 
o'clock  yesterday.  On  his  motion  the  Convention  resolved  itself  into 
committee  of  the  whole,  on  that  report — Mr.  Varnum  in  the  chair. 

The  report  of  the  committee  was  read,  and  it  was  voted  that 
the  several  resolutions  recommended  in  it  should  be  taken  up  for 
consideration  in  order. 

The  first  resolution  was  then  read  as  follows  : 

Resolved,  That  it  is  expedient  and  proper  to  alter  and  amend  the  constitution  of 
this  Commonwealth,  by  striking  out  in  the  first  article  of  the  second  section  of  the 
second  chapter  thereof,  relating  to  the  lieutenant  governor,  the  following  words :— 
"  In  point  of  religion,  property,  and  residence  in  the  Commonwealth." 

Mr.  Pickman  said  it  was  his  duty  and  right,  as  chairman  of  the 
committee  which  made  the  report  under  consideration,  -to  explain 
the  views  which  had  led  them  to  the  adoption  of  the  principles  of 
their  report.  But  in  this  case  he  was  in  the  peculiar  situation  of 
being  opposed  to  the  resolution  under  consideration,  which,  as 
chairman,  he  had  reported.  The  resolution  was  recommended  by 
a  bare  majority  of  the  committee,  and  after  stating  this  fact,  and 
that  it  was  in  opposition  to  his  own  sentiments,  he  should  give  an 
opportunity,  to  gentlemen  of  that  majority,  to  explain  their  reasons 
in  favor  of  it.  As  far  as  he  understood  the  reason,  it  was  that  they 
were  opposed  to  the  requiring  of  any  religious  test  as  a  qualification 
for  the  office  of  lieutenant  governor. 

Mr.  Bangs  of  Worcester  said  the  gentleman  had  misapprehend- 
ed the  reason  which  influenced  the  majority  of  the  select  com- 
mittee in  regard  to  this  resolution.     It  was  not  because  they  wished 


MASSACHUSETTS    CONVENTION.  127 

to  show  their  disapprobation  of  a  religious  test  that  they  were  in 
favor  of  the  resolution,  but  because  they  thought  this  amendment 
would  meet  the  views  of  the  Convention.  The  question  respecting 
the  test,  it  was  supposed,  would  be  determined  more  conveniently 
upon  the  report  of  the  committee  on  the  part  of  the  constitution 
which  respects  oaths,  &c.  Mr.  Bangs  concluded  by  moving  to 
postpone  this  resolution  until  the  Convention  had  come  to  a  decision 
upon  that  report. 

This  motion  was  agreed  to,  and  the  committee  proceeded  to  the 
second  resolution. 

Mr.  Bangs  moved  to  amend  the  report  by  inserting  a  resolution 
that  it  is  expedient  to  amend  the  constitution  by  making  a  provision 
in  part  2,  ch.  2,  sec.  2,  art.  2,  that  the  lieutenant  governor  shall 
receive  the  same  compensation  as  other  members  of  the  council, 
and  no  more,  unless  called  to  perform  the  duties  of  the  governor 
when  a  vacancy  shall  take  place  in  that  office,  in  which  case  he 
shall  have  the  same  salary  as  the  governor. 

Mr.  Bliss  of  Springfield  wished,  as  the   subject  was  new  to  a 
majority  af  the  committee,  that  it  might  be  postponed. 
Mr.  Bangs  said  he  had  no  objection  to  that  course. 
Mr.  Parker  (the  President)  said  the   question  was  a  simple  one, 
whether  the   lieutenant  governor  should  have  a  salary  or  not.     He 
thought  it  was  unnecessary  to  have  a  postponement. 

Mr.  Bangs  said  he  proposed  the  amendment  in  compliance  with 
what  he  conceived  to  be  the  general  wish  of  the  people  in  the  part 
of  the  State  in  which  he  resided.  They  thought  that  the  office  of 
lieutenant  governor  was  unnecessary,  under  existing  circumstances, 
and  there  was  a  general  expectation  that  it  would  be  abolished. 
For  himself,  he  was  in  favor  of  retaining  the  office.  It  was  founded 
by  our  ancestors ;  it  added  to  the  honor  and  dignity  of  the  State  ; 
but  the  reason  which  had  most  weight  with  him,  was  the  propriety 
of  designating  a  successor  to  the  chief  magistrate  in  case  of  his 
decease.  But  the  people  were  unwilling  that  the  lieutenant  gov- 
ernor should  receive  a  salary  for  doing  nothing.  He  has  a  compen- 
sation for  his  services  as  a  counsellor ;  this  was  sufficient.  By 
giving  him  a  salary  besides,  the  Legislature  had  established  a  sine- 
cure, which  was  a  monster  in  a  republican  government.  The  salary 
of  five  hundred  dollars,  he  said,  conferred  no  honor  on  the  State 
—  it  was  a  pitiful  sum.  He  would  give  nothing  at  all,  or  he  would 
give  a  liberal  salary.  The  sum  however  had  nothing  to  do  with 
his  objections  to  the  salary.  It  was  the  principle  of  a  sinecure  to 
which  he  was  opposed.  Giving  a  salary  to  the  lieutenant  gov- 
ernor was  contrary  to  the  principles  and  intention  of  the  constitution. 
The  constitution  says  the  governor  shall  have  a  salary ;  it  does  not 
say  so  with  respect  to  the  lieutenant  governor  —  and  yet  the 
Legislature  annually  grant  him  a  salary.  He  had  understood  that 
the  lieutenant  governor  used  to  have  fees  and  perquisites,  as  Cap- 
tain of  the  Castle  ;  and  when  these  were  relinquished  by  the  ces- 
sion of  the  castle  to  the  United  States,  the   Legislature  gave  this 


128  MASSACHUSETTS     CONVENTION. 

salary  of  five  hundred  dollars  as  an  equivalent ;  but  this  was  not 
intended  by  the  constitution.  It  will  be  said  we  should  not  in  the 
constitution,  fix  the  precise  sums  for  salaries.  He  was  of  the  same 
opinion  ;  but  there  was  a  great  difference  between  fixing  the  amount 
of  a  salary  and  determining  that  there  should  be  no  salary  at  all. 
This  amendment,  he  said,  was  not  making  any  change  in  the  con- 
stitution ;  it  was  only  making  more  explicit  what  was  already 
intended  by  that  instrument.  But  what  if  it  was  a  change  ?  he 
came  there  to  touch  that  instrument,  not  with  a  trembling  hand,  as 
some  gentlemen  seemed  to  have  come.  He  would  touch  it  with  a 
cautious,  but  at  the  same  time  with  a  firm  hand,  and  amputate  such 
parts  as  were  diseased. 

Mr.  Pickman  thought  this  subject  was  not  a  proper  one  to  be 
debated  in  that  body.  It  had  better  be  left  to  the  Legislature  to 
determine  whether  a  salary  should  be  allowed  or  not.  The  mem- 
bers of  the  Legislature  as  well  as  those  of  the  Convention  were 
chosen  by  the  people  and  represented  the  people.  The  constitution 
should  guard  against  such  abuses  as  the  Legislature  would  be  under 
temptation  to  commit,  but  it  should  not  be  jealous  of  tj|e  Legisla- 
ture. The  two  branches  of  that  body  were  more  suitable  to  dis- 
cuss this  subject,  as  they  could  frame  their  decisions  according  to  the 
exigency  of  the  times,  and  the  Convention  had  better  leave  the 
power  of  deciding,  where  the  constitution  leaves  it.  Mr.  P.  did 
not  agree  with  the  gentleman  from  Worcester  that  this  office  was 
a  sinecure.  The  lieutenant  governor  always  kept  himself  ready  to 
act  in  the  council  when  wanted  ;  it  was  not  so  with  the  other  coun- 
sellors. He  had  also  the  more  arduous  task  of  presiding  in  the 
council  in  the  absence  of  the  governor  ;  it  was  his  duty  to  hold 
himself  in  readiness  to  supply  a  vacancy  in  the  governor's  office, 
and  he  was  disqualified  with  respect  to  holding  other  offices. 

Mr.  Slocum  of  Dartmouth  said,  dignities  and  sound  were  a  pleas- 
ing thing,  but  we  ought  not  to  give  too  much  for  them.  He  did 
not  wish  duty  to  be  performed  without  compensation,  but  he  was 
not  satisfied  that  the  duties  of  the  lieutenant  governor  deserved 
greater  compensation  than  his  pay  as  a  counsellor.  Every  body 
was  glad  at  this  opportunity  for  revising  the  constitution,  because 
we  could  begin  to  economize,  and  there  was  no  reason  why  we 
should  not  begin  it  at  the  head.  The  money  to  pay  the  salary  of 
the  lieutenant  governor  was  to  be  drawn  from  the  laboring  part 
of  the  community,  and  he  wished  the  office  might  be  abolished  as 
a  useless  one,  but  as  that  was  not  the  question  before  the  committee, 
he  hoped  the  compensation  to  be  allowed  would  be  only  as  much 
as  the  compensation  of  a  counsellor. 

Mr.  Dutton.  The  amendment  under  consideration  provides  that 
the  lieutenant  governor  shall  have  no  salary,  except  during  the 
time  he  acts  as  governor.  I  am  opposed  to  the  amendment.  The 
only  argument  in  favor  of  it  is,  that  the  office  is  a  sinecure.  I  do 
not  admit  the  fact.  The  lieutenant  governor  has  high  and  impor- 
tant duties  to  discharge.     In  case  of  the  death,  or  absence,  or  dis- 


MASSACHUSETTS     CONVENTION.  129 

ability  of  the  governor,  he  is  to  perform  all  the  duties  that    pertain 
to  the  office  of  governor.    .It  will  be  recollected,  Sir,  that  the  gov- 
ernor and  lieutenant  governor  are  the  only  officers  who  are   elected 
by  the  whole  people.     This  is  a  wise  provision,  and  secures  to  the 
people  a  governor  elected  by  themselves.     It  has  been  the   practice 
of  other  states  and  of  the  United  States,  to  establish  an  office  second 
in  rank  and  dignity  to  that  of  the   chief  magistrate,  to  be  filled  by 
some  distinguished  man,. and  elected  with  a  view  to  his  discharging 
the  duties  of  chief  magistrate  in  certain  specified  emergencies.     Be- 
sides, sir,  in  consequence  of  his  rank  and  dignity,  he  is  put  to  an 
additional  expense.     It  often  happens,  that  he  is  obliged  to  do  the 
honors  of  the  Commonwealth,  to   notice  strangers  of  distinction, 
and  these   civilities  are  attended  with  expense.     Is  it  reasonable 
then,  is  it  just,  to  clothe  a  man  with  an  office,  which  subjects  him 
to  expense,  without  providing  at  least  an  indemnity.     Sir,  I  believe 
the  present  lieutenant  governor  expends  more  than  his  whole  salary 
in  consequence  of  his  office.     But  there  is  another  objection  to  the 
amendment,  which  appears  to  me  to  be  conclusive,  and  that  is  this : 
— it  is  a  matter  which  belongs  to  the  discretion  of  the  Legislature. 
It  ought  to  be  left  there,  as  the   salaries  of  the  other  officers  are. 
But  this  amendment  goes  to  tie  up  the  hands  of  all  future  Legisla- 
tures, and  puts  it  forever  out  of  their  power  to  provide  any  compen- 
sation, under  any  circumstances,  for  the  lieutenant  governor.     To 
insert  such  a  provision  as  this,  into  our  constitution,  has  to  my 
mind  an  air  of  littleness,  not  altogether  becoming  the  dignity  of  the 
Convention.     I  am  aware,  sir,  that   the  amendment  provides,  that 
when  he  acts  as  governor  he   shall  be   paid  as  governor,  that  the 
State*  may  be  charged  in  account  with  so  many  months  and  days 
service,  as   governor.     But,  sir,  these  offices  are   too  important  and 
dignified  to  be  dealt  with  in  this  way ;  and  I  trust  we  shall  leave 
the   subject  where   the  constitution  has  left  it — to  the  discretion  of 
future  Legislatures. 

Mr.  Childs  of  Pittsfield  said  he  would  not  be  deterred  by  the  in- 
timation of  the  gentleman  from  Boston  of  the  littleness  of  this  meas- 
ure. He  considered  it  a  principle  that  they  were  to  establish ;  that 
there  should  be  no  sinecures  in  the  government.  If  the  gentleman 
would  define  what  was  meant  by  a  sinecure,  and  if  the  office  of 
lieutenant  governor  was  not  a  sinecure,  he  did  not  know  how  the 
word  should  be  defined.  He  considered  that  office  a  sinecure,  in 
which  the  incumbent  rendered  no  services.  He  differed  from  the 
idea  of  the  gentleman  from  Salem,  that  this  was  not  a  place  to  fix 
principles.  He  thought  it  was  peculiarly  the  place  to  fix  principles, 
and  that  the  Legislature  was  not  the  place.  By  the  constitution, 
the  representation  in  the  senate  was  proportioned  to  property,  and 
that  in  the  house  of  representatives  to  population.  Were  not  these 
principles  to  be  determined  by  the  constitution,  and  not  by  the  Leg- 
islature ?  I  do  hold  that  the  office  of  lieutenant  governor  is  a  sine- 
cure, and  that  we  are  called  upon  to  fix  the  principle  that  no  sinecure 
shall  exist  in  the  government.  The  antiquity  of  the  office  does  not 
17 


130  MASSACHUSETTS    CONVENTION. 

prove  that  it  is  not  a  sinecure.  He  hoped  that  the  question  would 
be  decided  on  principle,  and  he  was  for  that  reason  in  favor  of  the 
amendment. 

Mr.  Austin  of  Charlestown  said  he  was  sorry  the  gentleman  from 
Worcester  had  not  made  a  different  motion.  He  was  not  disposed 
to  make  a  motion  himself,  after  the  lamentable  fate  which  had  at- 
tended the  last  one  he  made,  but  he  hoped  the  gentleman  would 
vary  his  motion  so  that  the  proposition  should  be  to  abolish  the  office 
of  lieutenant  governor  ;  for  if  it  was  not  a  sinecure,  it  was  at  least  a 
quasi  sinecure.  He  should  not  vote  for  the  gentleman's  present 
motion.  As  the  office  was  the  second  in  the  government,  he  should 
think  it  derogatory  to  request  gentlemen  to  fill  it  for  nothing.  The 
present  salary  was  not  sufficient  to  support  the  courtesies  which 
were  expected  from  .the  incumbent.  He  did  not  mean  to  encourage 
pomp  and  splendor,  which  were  contrary  to  the  genius  of  our  insti- 
tutions, but  men  high  in  office  were  unavoidably  exposed  to  addi- 
tional expenses  on  account  of  their  office.  It  would  no  doubt  be 
useful  to  appoint  a  successor  to  the  governor,  and  one  might  be 
found  in  the  president  of  the  senate. 

Mr.  Blake  of  Boston  repeated  the  declaration  which  he  had  before 
made,  that  he  would  not  assent  to  the  change  of  a  single  feature  of 
the  constitution  which  should  have  a  tendency  to  change  its  repub- 
lican character.  He  was  opposed  to  the  present  amendment  because 
it  was  anti-republican.  The  office  was  necessary,  for  the  case  might 
occur,  and  had  already  occurred,  when  all  the  duties  of  chief  magis- 
trate would  devolve  upon  the  lieutenant  governor.  In  such  case  it 
was  proper,  if  the  governor  had  any  compensation,  that  the  lieuten- 
ant governor  should  have  it.  These  two  offices  come  directly^from 
the  people.  Some  gentlemen  would  take  away  the  choice  from  the 
people.  They  would  have  the  office  devolve  upon  a  person  chosen 
for  another  purpose,  and  in  whose  designation  to  perform  the  duties 
of  chief  magistrate  the  people  would  have  no  direct  voice.  The 
office  was  called  a  sinecure.  Was  it  so  ?  The  lieutenant  governor 
is  a  member  of  the  council  and  president  of  that  board.  They  are 
sometimes  in  session  from  month  to  month.  Other  members  may 
be  absent,  but  the  lieutenant  governor  cannot,  as  presiding  officer — 
he  has  greater  responsibility.  The  proposed  alteration  was  anti-re- 
publican, because  if  it  prevailed  none  but  a  man  of  wealth  could  be 
lieutenant  governor.  He  is  often  required  to  represent  the  executive 
of  the  Commonwealth.  He  is  bound  in  the  absence  of  the  gover- 
nor to  receive  strangers  of  distinction  with  the  hospitality  becoming 
the  head  of  the  Commonwealth.  Who  can  perform  these  duties  but 
a  man  of  wealth  or  a  man  who  has  a  compensation  ?  By  with- 
drawing the  salary  we  pronounce  that  none  but  a  man  of  opulence 
can  fill  the  office.  The  performance  of  these  duties  is  called  mere 
show  and  pageantry.  He  asked  if  the  framers  of  the  constitution 
were  men  of  pomp,  show  and  pageantry ;  if  the  times  in  which  the 
constitution  was  formed  were  suited  for  the  indulgence  of  this  dis- 
position ?     If  the  office  of  lieutenant  governor  was  important  and 


MASSACHUSETTS    CONVENTION.  131 

necessary  at  the  time  of  the  formation  of  the  constitution,  when  the 
population  of  the  Commonwealth  was  comparatively  small,  was  it 
not  much  more  so  now  ?  He  referred  to  the  example  of  the  United 
States  constitution,  which  requires  a  vice-president  who  has  a  per- 
manent salary,  and  who  is  chosen  not  principally  to  act  as  president 
of  the  senate,  but  that  there  may  be  a  person  chosen  by  the  majority 
of  the  people  for  the  express  purpose  of  acting  as  chief  magistrate  in 
case  of  .necessity. 

Mr.  Hoar  Of  Concord  said  that  if  gentlemen  would  review  their 
argument  in  support  of  this  motion  he  thought  they  would  be  satis- 
fied that  it  was  inconclusive.  They  state  that  the  office  is  a  sine- 
cure, and  if  it  is  not,  they  do  not  understand  the  meaning  of  the 
term,  and  for  this  reason  there  ought  to  be  no  salary  attached  to.  it. 
But  will  they  vote  for  an  office  which  is  a  sinecure  ?  Their  argu- 
ment is  founded  on  the  principle  that  there  should  be  no  sinecures, 
yet  they  vote  for  the  office  and  object  to  the  salary  because  the  office 
is  a  sinecure.  Mr.  H.  thought  that  if  the  principle  on  which  this 
amendment  was  founded  were  to  be  pursued  it  would  lead  to  an 
endless  discussion.  They  should  on  the  same  principle  restrict  the 
Legislature  in  relation  to  every  other  office,  and  they  should  be  en- 
gaged in  digesting  a  fee  bill  for  all  the  offices  of  the  State.  This 
would  involve  an  inquiry  into  a  thousand  minute  considerations 
which  he  was  not  willing  to  go  into.  If  the  office  was  a  sinecure, 
which  however  he  did  not  think,  if  it  was  of  no  use,  it  ought  to  be 
abolished.     But  this  was  not  the  question  now  before  the  committee. 

Mr.  Apthorp  of  Boston  thought  that  upon  the  same  principle  on 
which  we  would  prohibit  the  giving  of  a  salary  to  the  lieutenant 
governor  we  should  limit  the  authority  to  give  salaries  to  the  treas- 
urer, secretary  and  other  officers.  But  this  was  a  subject  much 
better  left  to  the  wisdom  and  discretion  of  the  Legislature.  The 
lieutenant  governor  has  important  duties  to  perform,  and  it  may  hap- 
pen that  still  more  important  duties  shall  devolve  upon  him.  He  is 
always  bound  to  be  in  readiness  to  perform  the  duties  of  chief  mag- 
istrate ;  he  is  placed  under  a  restraint,  and  subjected  to  expenses,  for 
which  he  ought  to  be  in  part  compensated. 

A  member  whose  name  we  did  not  learn,  disliked  the  amendment, 
because  he  thought  the  office  unnecessary.  To  give  time  for  the 
mover  to  substitute  a  resolution  to  abolish  the  office  altogether  he 
moved  that  the  question  be  indefinitely  postponed. 

The  Chairman  said  an  indefinite  postponement  could  not  take 
place  in  committee — it  must  be  in  Convention — and  it  would  then 
be  a  postponement  of  the  whole  subject. 

Mr.  Dana  of  Groton  said  he  had  thought  the  office  had  better  be 
abolished,  but  the  discussion  had  given  him  better  views  of  the  sub- 
ject. He  now  thought  it  was  proper  that  some  person  should  be 
designated  by  the  people  to  supply  a  vacancy  in  the  chair  of  the 
chief  magistrate.  The  whole  council,  or  the  president  of  the  senate, 
or  the  oldest  or  youngest  counsellor  might  be  appointed  by  the  con- 
stitution to  succeed,  but  it  would  not  be  so  convenient ;  as  it  would 


132  MASSACHUSETTS    CONVENTION. 

be  necessary  to  keep  in  mind  at  the  elections,  that  the  counsellors  and 
senators  should  be  qualified  not  only  for  those  offices  respectively, 
but  likewise  for  the  office  of  governor.  He  thought  however  that 
the  constitution  did  not  contemplate  the  lieutenant  governor's  hav- 
ing a  salary.  And  this  was  to  be  deduced  from  contemporaneous  con- 
struction, if  that  was  of  any  force,  for  no  salary  had  been  attached  to 
the  office  for  several  years  after  the  adoption  of  the  constitution. 

Mr.  Hinckley  of  Northampton  mentioned  a  circumstance  which 
had  occurred  under  our  present  constitution,  of  the  office  of  governor 
having  once  immediately  after  the  election,  devolved  on  the  lieuten- 
ant governor,  who  administered  it  through  the  whole  year.  He 
thought  gentlemen  were  blending  two  distinct  questions.  It  was 
one  question  whether  we  should  have  a  lieutenant  governor,  and  an- 
other whether  he  should  have  any  salary,  .The  Legislature  had  al- 
ways determined  what  were  the  pecuniary  resources  of  the  state  and 
how  they  should  be  applied.  It  is  for  us  to  say  only  whether  there 
shall  be  such  an  officer ;  we  should  say  nothing  about  his  com- 
pensation. He  never  heard  any  objection  made  to  the  office,  and 
he  did  not  think  that  in  his  part  of  the  country  scarcely  a  vote  would 
be  given  against  retaining  it.  This  however  was  not  the  question 
before  the  committee.  He  said  if  it  was  requisite  th§tt  the  lieuten- 
ant governor  should  be  at  his  post,  that  he  should  preside  at  the 
council  board — if  the  duties  of  a  presiding  officer  are  more  difficult 
than  those  of  another  member,  the  Legislature  ought  to  have  power 
to  make  him  a  compensation.  As  to  the  lieutenant  governor's  be- 
ing always  a  wealthy  man,  keeping  a  sumptuous  table  and  living  in 
splendor,  this  was  entirely  out  of  the  question. 

Mr.  Story  of  Salem  said  he  did  not  object  to  a  thorough  exami- 
nation of  the  constitution  and  making  fuch  amendments  as  were 
salutary.  Those  parts  which  were  weak  he  would  strengthen,  and 
those  which  were  useless  he  would  strike  out.  They  were  not  mak- 
ing a  law  which  could  be  repealed,  but  a  constitution  which  could 
not  be  altered.  He  said  there  was  very  great  weight  in  the  obser- 
vation of  the  gentleman  from  Salem,  (Mr.  Pickman,)  that  they 
should  not  bind  the  discretion  of  the  Legislature  except  where  it 
was  liable  to  abuse.  They  ought  to  have  confidence  in  the  Legis- 
lature ;  this  principle  was  congenial  to  the  nature  of  our  govern- 
ment. It  was  incumbent  on  gentlemen  who  proposed  any  change 
in  the  constitution,  to  show  the  necessity  or  expediency  of  the 
"measure.  Had  gentlemen  shown  any  necessity  or  expediency  in 
the  present  case  ?  Was  any  gentleman  so  wise,  of  such  foresight, 
as  to  be  able  to  say  that  in  all  future  times  and  in  all  the  vicissitudes 
of  human  affairs,  it  would  never  be  necessary  to  have  such  an  officer 
as  that  of  lieutenant  governor — that  his  duties  would  never  become 
important,  and  that  they  would  never  deserve  any  compensation  ? 
He  would  pass  over  the  arguments  that  we  ought  not  to  have  a 
lieutenant  governor,  not  because  he  was  not  prepared  to  show  the 
importance  of  having  that  office,  but  because  it  was  not  the  question 
before  the  committee. 


MASSACHUSETTS    CONVENTION.  133 

The  learned  gentleman  then  proceeded  to  argue,  with  great  force 
and  eloquence,  that  the  office  so  far  from  being  a  sinecure  had  im- 
portant duties — that  it  was  an  office  of  great  dignity  and  responsi- 
bility— that  if  no  compensation  is  given,  none  but  wealthy  citizens 
can  accept  the  office — that  it  is  not  to  be  expected  that  the  person 
best  qualified  for  the  office  will  always  be  able,  like  the  good,  virtu- 
ous and  pious  individual,  so  distinguished  for  his  extensive  muni- 
ficence and  benevolence,  who  has  for  several  years  filled  the  office, 
to  dispense  with  a  suitable  compensation  for  his  services — that  the 
lieutenant  governor  cannot  avoid  incurring  expense  in  consequence 
of  his  office — that  it  was  not  a  republican  principle  to  be  obliged  to 
choose  a  rich  man  who  will  serve  without  compensation,  or  a  poor 
one  to  be  corrupted — that  it  could  not  be  expected  that  good,  able, 
and  faithful  men  should  be  found  to  serve  the  public  without  a  suit- 
able compensation — and  that  it  was  no  economy  to  starve  men  in 
office. 

Mr.  Flint  of  Reading  concurred  in  the  views  expressed  by  the 
gentleman  who  preceded  him.  The  question  of  compensation  to  the 
lieutenant  governor  belonged  to  the  Legislature.  If  the  Convention 
should  adopt  this  amendment,  it  was  saying  to  the  people  of  the 
Commonwealth  that  they  could  not  choose  another  body  of  men  fit 
to  be  trusted.  It  was  an  affront  on  the  people.  It  was  attaching 
more  consequence  to  themselves  than  they  were  entitled  to.  He 
objected  to  tying  up  the  people  by  unnecessary  restrictions.  They 
had  present  experience  of  the  injurious  effect  of  superfluous  limita- 
tions. Had  it  not  been  for  six  words  in  the  constitution,  relative  to 
the  apportionment  of  senators,  the  people  never  would  have  called 
this  Convention.     He  stated  other  reasons  against  the  amendment. 

Mr.  Mitchell  of  Bridgewater  spoke  in  favor  of  the  amendment,  and 

Mr.  Holmes  of  Rochester,  against  it. 

The  question  was  taken  on  the  amendment,  and  decided  in  the 
negative — 105  to  282. 

The  second  resolve  was  then  read  in  the  following  words  : 

Resolved,  That  it  is  expedient  and  proper  to  amend  the  same,  by  striking  out  in  the 
first  article  of  the  third  section  and  same  chapter,  relating  to  the  council,  &c.  the 
word  "  nine,"  and  insert  "  seven ;"  also  the  word  "  five,"  and  insert  "  four." 

Mr.  Pickman  explained  the  reasons  of  the  committee  for  recom- 
mending a  reduction  of  the  number  of  members  of  the  council  from 
nine  to  seven.  They  were  in  substance,  that  by  the  separation  of 
Maine  from  the  Commonwealth  the  duties  of  the  council  would  be 
considerably  diminished — that  in  fact  for  many  years  past  it  has  been 
the  practice  to  choose  seven  of  the  nine  counsellors  from  Massachu- 
setts proper — that  this  number  would  be  as  adequate  to  perform  the 
duties  as  nine  before  the  separation.  If  the  number  of  members  be 
established  at  seven  it  would  be  proper  to  reduce  the  number  required 
at  a  quorum  to  four. 

Mr.  Bliss  of  Springfield  was  opposed  to  the  amendment.  He  con- 
sidered the  duties  which  devolved  upon  the  council  as  extremely  im- 
portant, and  he  could  not  consent  that  two  or  three  men  should  have 


134  MASSACHUSETTS    CONVENTION. 

the  performance  of  those  duties.  If  four  members  are  to  form  a 
quorum  they  can  perform  all  the  duties  of  the  council.  Suppose  the 
governor  and  lieutenant  governor  to  reside  in  this  vicinity,  and  three 
counsellors  to  be  chosen  from  three  adjacent  counties,  we  should  have 
the  whole  executive  department  of  the  Commonwealth  within  a  cir- 
cuit of  ten  miles  from  the  metropolis.  This  was  a  case  not  unlikely 
to  happen.  There  was  nothing  to  control  the  governor  from  calling 
a  council  when  he  pleases.  Suppose  a  vacancy  to  occur  in  an  im- 
portant office,  and  the  council  to  be  summoned  upon  a  short  notice, 
it  would  be  impossible  that  the  distant  members  should  attend,  and 
the  duty  of  making  the  appointment  would  fall  upon  the  members 
in  this  vicinity.  He  knew  that  the  governor  must  have  a  discretion 
to  summon  the  council  at  pleasure — that  exigencies  might  arise  that 
would  admit  of  no  delay — that  it  was  important  that  a  considerable 
part  of  the  executive  government  should  reside  near  the  metropolis. 
Yet  it  was  also  important  that  every  part  of  the  Commonwealth  should 
be  represented  in  this  department  of  the  government.  He  thought 
that  if  but  seven  were  to  be  chosen  to  the  council,  five  should  be 
required  to  be  present  on  making  appointments. 

Mr.  Pickman  said  as  he  was  called  upon  he  hoped  he  should  be 
excused  from  rising  again.  He  was  surprised  at  the  objection  made 
by  the  gentleman  from  Springfield.  There  was  a  general  expecta- 
tion that  the  council  would  be  reduced,  and  he  had  expected  that 
gentlemen  would  be  in  favor  of  a  greater  reduction.  He  thought 
that  seven  was  a  sufficient  number.  Before  the  separation,  the  coun- 
cil in  effect  consisted  but  of  seven  members,  as  the  gentlemen  from 
Maine  on  account  of  their  great  distance  seldom  attended.  The  ob- 
jection of  the  gentleman  existed  as  forcibly  against  the  old  arrange- 
ment as  against  that  now  proposed.  To  effect  a  more  general  dis- 
tribution of  the  members,  it  was  proposed  that  but  one  should  be 
chosen  from  a  county,  instead  of  two,  the  present  limitation.  He 
did  not  believe  that  we  ever  had  or  ever  should  have  a  governor  who 
would  undertake  to  nominate  to  an  important  office,  and  to  have  the 
nomination  confirmed,  without  notice  to  all  the  members.  It  was 
not  to  be  supposed  that  he  would  venture  to  appoint  a  chief  justice 
when  the  members  from  this  vicinity  only  were  present.  It  was  a  sup- 
position too  improbable  to  be  admitted.  It  was  necessary  on  account 
of  emergencies  that  may  arise,  that  a  quorum  of  the  council  should 
be  within  a  convenient  distance.  It  was  even  now  often  difficult  to 
obtain  a  quorum.  The  compensation  was  too  small  to  induce  mem- 
bers to  give  up  their  time  entirely  to  the  duties  of  the  office.  It  was 
a  sacrifice  not  to  be  expected.  It  was  necessary  that  the  quorum 
should  be  small,  and  one  which  could  be  formed  from  members  with- 
in a  short  distance  from  the  seat  of  government.  The  difference  be- 
tween five  and  four  could  make  no  difference  in  the  gentleman's 
argument,  as  it  required  the  same  number  to  make  a  majority  in  one 
case  as  in  the  other. 

Mr.  Fay  of  Cambridge  wished  to  say  a  few  words  in  reply  to  the 
gentleman  from  Springfield.     His  objection  supposed  that  a  fraud 


MASSACHUSETTS    CONVENTION.  153 

might  be  committed  by  the  governor,  which  was  not  to  be  presumed  ; 
and  if  committed  would  subject  him  to  impeachment,  or  that  the 
council  might  be  taken  by  surprise,  which  event  could  not  happen, 
as  nominations  are  required  to  be  made  seven  days  before  the  ap- 
pointment takes  place. 

Mr.  Bliss  had  not  forgotten  that  all  appointments  to  judicial  of- 
fices were  made  only  after  seven  days'  notice,  but  the  Legislature 
were  continually  creating  important  offices,  in  the  appointments  to 
which  no  such  notice  was  required.  He  ,  knew  that  important  ap- 
pointments had  been  made  when  some  members  of  the  council  did 
not  know  even  that  any  meeting  of  the  council  had  been  held,  and 
he  saw  no  reason  why  such  cases  should  not  occur  again.  He  did 
not  impute  fraud  to  any  one.  The  duties  of  the  office  were 
now  much  greater  than  when  the  constitution  was  established.  He 
was  not  satisfied  that  the  council  ought  not  to  be  differently  con- 
stituted. 

Mr.  Blake  was  not  satisfied  with  the  reasons  given  by  the  gentle- 
man from  Salem  for  the  proposed  alteration.  He  had  not  shown 
that  it  was  necessary  or  clearly  expedient.  He  proceeded  to  argue 
that  the  duties  of  the  council  were  as  arduous  and  important  now,  as 
at  the  time  of  the  adoption  of  the  constitution. 

The  question  was  then  taken  and  the  resolution  adopted — 281 
to  80. 

The  next  resolution  was  then  read  as  follows : 

Resolved,  that  it  is  expedient  and  proper  to  amend  the  same  by  striking  out  the 
whole  of  the  second  article  of  the  same  section  and  insert,  "  seven  counsellors  shall 
be  annually  chosen  from  among  the  people  at  large  on  the  day  of  by  the 

joint  ballot  of  the  senators  and  representatives  assembled  in  one  room." 

Mr.  D.  Davis  of  Boston  thought  that  there  was  a  defect  in  the 
resolution.  There  was  no  provision  for  the  qualifications  of  the 
counsellors.  Under  the  present  constitution  it  was  required  that  the 
counsellors  should  be  first  chosen  from  the  senate.  It  was  proposed 
now  to  dispense  with  that  requisition.  Yet  he  presumed  it  was  in- 
tended that  they  should  now  be  qualified  in  a  similar  manner.  If 
so,  some  further  provision  was  necessary. 

Mr.  Pickman  agreed  in  the  propriety  of  this  suggestion.  Some 
further  remarks  were  made  on  this  subject  by  him,  and  several  other 
gentlemen. 

Mr.  Freeman  of  Sandwich,  after  stating  the  reasons  for  his  motion, 
moved  to  strike  out  the  words,  "from  among  the  people  at  large." 
The  motion  was  negatived. 

Mr.  Bond  of  Boston  suggested  that  some  provision  was  necessary 
for  supplying  vacancies.  The  resolution  makes  it  imperative  that 
the  seven  members  should  be  chosen  on  a  certain  day.  Some  other 
remarks  were  made  by  him  and  other  gentlemen  on  this  point. 

Mr.  Bliss  was  not  satisfied  with  the  article.  He  thought  it  not 
necessary  to  take  away  from  the  people  their  voice  in  the  choice  of 
counsellors.  He  was  against  the  innovation.  He  saw  no  good  and 
there  might  be  evil  in  it. 


136  MASSACHUSETTS    CONVENTION. 

A  motion  was  made  that  the  committee  should  rise.  But  the 
motion  was  withdrawn  at  the  request  of  Mr.  Parker  (the  President) 
who  wished  to  propose  an  amendment.  It  was  required  that  the 
counsellors  should  be  qualified  by  taking  the  oaths  in  presence  of 
the  two  houses  of  the  Legislature.  It  sometimes  happened  that  gen- 
tlemen elected  could  not  attend  during  the  session,  and  the  incon- 
venience would  in  future  be  still  greater  if  there  was  to  be  but  one 
session  in  the  year.  He  therefore  offered  a  resolution  providing  for 
such  an  amendment,  that  if  all  the  counsellors  elected  should  not 
attend  so  as  to  be  qualified  in  convention  of  the  two  houses,  they 
shall  be  qualified  before  the  governor  and  such  counsellors  as  have 
been  previously  qualified. 

Mr.  Davis  moved  to  amend  the  resolution  before  the  committee, 
by  inserting  after  the  word  room,  "who  shall  have  the  same  quali- 
fications as  are  required  by  this  constitution  for  senators  of  the  Com- 
monwealth." 

The  committee  then  rose,  reported  progress,  and  asked  leave  to 
sit  again,  which  was  granted. 

Mr.  Story  of  Salem,  from  the  committee  on  the  judiciary,  sub- 
mitted the  following  reports : — 

The  committee  to  whom  was  referred  so  much  of  the  constitution  of  this  Common- 
wealth as  is  contained  in  the  third  chapter  of  the  second  part  and  respects  the  Ju- 
diciary power,  with  directions  to  take  into  consideration  the  propriety  and  expediency 
of  making  any,  and  if  any.  what  alterations  or  amendments  therein,  and  to  report  there- 
on, have  attended  to  the  duty  assigned  to  them,  and  respectfully  ask  leave  to  report — 

That  they  have  taken  into  consideration  the  several  articles  respecting  the  ju- 
diciary power  and  are  of  opinion  that  some  amendments  and  alterations  may  be  made 
therein  which  will  conduce  to  the  public  good,  and  extend  the  blessings  we  already 
derive  from  an  upright  and  impartial  administration  of  the  laws. 

By  the  first  article  of  the  constitution,  any  judge  may  be  removed  from  his  office 
by  the  governor,  with  the  advice  of  the  council,  upon  the  address  of  a  bare  majority 
of  both  houses  of  the  Legislature — the  committee  are  of  opinion  that  this  provision 
has  a  tendency  materially  to  impair  the  independence  of  the  judges,  and  to  destroy 
the  efficacy  of  the  clause  which  declares  they  shall  hold  their  offices  during  good 
behavior.  The  tenure  of  good  behavior  seems  to  the  committee  indispensable  to 
guard  judges  on  the  one  hand  from  the  effects  of  sudden  resentments  and  temporary 
prejudices,  entertained  by  the  people,  and  on  the  other  hand,  from  the  influence, 
which  ambitious  and  powerful  men  naturally  exert  over  those  who  are  dependent 
upon  their  good  will.  A  provision  which  should  at  once  secure  to  the  people  a  power 
of  removal  in  cases  of  palpable  misconduct  or  incapacity,  and  at  the  same  time  secure 
to  the  judges  a  reasonable  permanency  in  their  offices  seems  of  the  greatest  utility ; 
and  such  a  provision  will  in  the  opinion  of  the  committee  be  obtained  by  requiring 
that  the  removal,  instead  of  being  upon  the  address  of  a  majority,  shall  be  upon  the 
address  of  two  thirds  of  the  members  present  of  each  house  of  the  Legislature.  And 
this  provision  has  the  additional  recommendation  that  it  is  engrafted  into  the  con- 
stitution of  some  of  the  other  states,  and  exists  in  analogous  cases  in  the  constitution 
of  the  United  States. 

There  is  also  a  supposed  ambiguity  in  the  first  article  which  has  given  rise  to  a 
question  whether  the  justices  of  the  peace  were  removable  from  office  upon  ad- 
dress, as  other  judicial  officers  are.  The  committee  are  of  opinion  that  this  ambi- 
guity ought  to  be  removed,  and  have  endeavored  to  effect  that  object  by  a  slight 
change  of  the  phraseology. 

The  committee  are  further  of  opinion  that  it  will  be  for  the  public  good  that  the 

Legislature  should  have  authority  to  create  a  supreme  court  of  equity,  distinct  from 

**»«3  supreme  court  of  law,  whenever  exigencies  of  the  public  service   shall  demand 

Courts  of  equity  seem  indispensable  to  a  perfect  administration  of  public  justice, 


MASSACHUSETTS    CONVENTION.  137 

since  there  are  many  cases  of  trusts,  confidences,  complicated  accounts,  partnerships, 
contributions  among  heirs  and  devisees,  and  above  all  of  frauds,  which  can  scarcely 
admit  of  complete  relief  in  any  other  tribunals.  The  Legislature  under  our  present 
constitution,  have  undoubtedly  full  power  to  create  a  court  of  equity.  But  it  is 
believed  that  such  a  court  must,  by  the  present  frame  of  government,  be  subordinate 
to  the  supreme  judicial  court,  and  appeals  must  lie  from  its  decrees  to  that  court. 
It  may  become  necessary,  and  in  the  judgment  of  the  committee  it  is  highly  import- 
ant, that  the  Legislature  should  possess  the  power  to  form  at  its  pleasure  an  indepen- 
dent supreme  court  of  equity,  of  equal  dignity  with  the  supreme  court  of  law, 
whose  decrees  should  not  be  re-examined  except  by  some  superior  tribunal  common 
to  each  and  independent  of  each.  This  may  be  effected  by  giving  power  to  the 
Legislature,  if  in  its  judgment  the  public  good  shall  require  it,  to  .establish  a  court 
of  appeals,  where  the  judgments  of  the  supreme  courts  both  of  law  and  equity 
might  be  subject  to  revisions,  under  such  regulations  as  the  Legislature  shall  direct. 

Of  such  a  court  the  judges  of  the  supreme  courts  of  law  and  equity  might,  ex- 
officio,  be  members,  entitled  to  give  their  reasons  on  all  appeals  from  their  own  de- 
cisions, but  having  no  voice  in  the  final  sentence  of  affirmance  or  reversal  of  their 
own  decisions.  The  other  members  of  such  court  might  be  appointed  and  hold  then- 
offices  by  such  a  tenure  as  the  Legislature  might  direct.  There  would  be  dignity 
and  importance  in  such  offices ;  and  probably  either  by  making  certain  high  officers 
ex-qfficio  members  of  such  court,  or  by  appointments  of  some  of  our  most  distinguished 
citizens  to  such  offices,  as  offices  of  honor  only,  the  court  of  appeals  might  be  made 
a  court  of  great  utility  and  security,  as  well  to  the  citizens  as  to  the  government,  at 
a  very  inconsiderable  expense.  The  committee  are  of  opinion  that  there  is  not  any 
material  objection  to  giving  to  the  Legislature  the  proposed  powers,  since  it  will 
always  be  in  the  option  of  the  Legislature  to  exercise  them  or  not,  and  resting  on 
the  legislative  will,  they  will  never  be  exercised  for  any  length  of  time,  unless  they 
are  found  essentially  to  promote  the  public  interests. 

The  committee  are  further  of  opinion  that  the  second  article  respecting  the  ju- 
diciary power  is  of  very  questionable  utility,  and  may  lead  to  serious  embarassments 
and  is  therefore  not  necessary  to  be  retained  in  the  constitution.  The  question  pro- 
posed by  the  Legislature  or  by  the  governor  and  council  'to  the  judges  may  deeply 
affect  private  rights  and  interests,  and  they  must  almost  inevitably  be  decided  by 
them,  without  the  important  benefit  of  an  argument.  It  is  contrary  to  the  general 
theory  of  a  republican  government  that  the  right  or  property  of  any  citizen  should 
be  taken  away  without  an  opportunity  of  being  heard  upon  the  questions  of  law 
which  those  rights  and  that  property  may  involve.  Another  class  of  cases  of  a  more 
public  character  may  be  referred  to  the  judges,  involving  questions  of  general  inter- 
est, of  political  power,  and  perhaps  even  of  party  principles — and  thus  the  proper 
responsibility  of  the  public  functionaries  may  be  shifted  upon  judges  who  are  called 
upon  only  to  decide,  and  not  to  act.  It  is  desirable,  as  far  as  possible,  to  remove  the 
judges  of  the  supreme  court  from  any  connection  with  the  other  departments  of  the 
government,  either  executive  or  legislative,  so  that  in  the  performance_  of  their  oivn 
proper  duties  in  the  administration  of  civil  and  criminal  justice,  they  may  continue  to 
possess  unimpaired  the  reverence  and  affection  of  the  whole  people. 

The  committee  propose  no  essential  amendment  in  the  third  article,  other  than  a 
provision  that  notaries  public  should  hold  their  offices  by  the  same  tenure  as  justices 
of  the  peace,  and  should  be  removable  from  office  in  the  same  manner. 

The  committee  are  of  opinion  that  the  fourth  article  requires  no  amendment;  and 
that  the  fifth  article  has  become  inoperative,  in  consequence  of  the  jurisdiction  in 
causes  of  marriage,  divorce  and  alimony,  and  appeals  from  the  judges  of  probate 
having  been  by  law  transferred  to  the  supreme  judicial  court,  and  therefore  it  is 
not  necessary  to  be  retained  in  the  constitution. 

The  committee  beg  leave  to  recommend  to  the  Convention  the  adoption  of  the  ac- 
companying resolutions.     All  which  is  respectfully  submitted. 

By  order  of  the  committee,  JOSEPH  STORY,  Cliairman. 

Resolved,  That  the  first  article  of  the  third  chapter  of  the  constitution  respecting 
the  judiciary  power  ought  to  be  amended,  so  that  "  all  judicial  officers  duly  appoint- 
ed, commissioned  and  sworn,  shall,  except  when  the  constitution  otherwise  provides, 
hold  their  offices  during  good  behavior  ;  but  the  governor,  with  the  consent  of  the 
council,  may  remove  any  judicial  officer  upon  the  address  of  two  thirds  of  the  mem- 
bers present  of  each  house  of  the  Legislature." 
18 


138  MASSACHUSETTS    CONVENTION. 

That  the  Legislature  may,  if  the  public  good  shall  require  it,  establish  a  supreme 
court  of  equity,  distinct  from  the  supreme  court  of  law.  But  questions  of  fact  in 
suits  in  equity,  shall,  if  either  party  require  it,  be  tried  by  a  jury  in  such  court  as  the 
Legislature  may  direct. 

That  the  Legislature  may,  if  the  public  good  may  require  it,  establish  a  court  of 
appeals,  to  revise  the  decisions  of  the  supreme  courts  of  law  and  equity,  under 
such  regulations  and  restrictions,  as  may  by  law  be  prescribed  ;  which  court  shall 
consist  of  not  less  than  members,  nor  more  than  members.  The  judges  of 
the  supreme  courts  of  law  and  equity  shall  ex-officio  be  members  of  such  court  of 
appeals  ;  and  may  respectively  assign  the  reasons  of  their  own  decisions,  but  they 
shall  have  no  voice  upon  the  question  of  a  reversal  or  affirmance  of  their  own  decisions. 
The  other  judges  of  the  court  of  appeals  shall  be  appointed  and  hold  their  offices  aa 
the  Legislature  shall  direct. 

Resolved,  That  it  is  inexpedient  to  retain  the  second  article  of  the  same  chapter 
of  the  constitution,  requiring  the  judges  of  the  supreme  court  to  answer  questions 
proposed  to  them  by  the  governor  and  council,  or  either  branch  of  the  Legislature. 

Resolved,  That  the  third  article  of  the  same  chapter  of  the  constitution  ought  to  be 
amended,  so  that  justices  of  the  peace  and  notaries  public  shall  hold  their  offices 
during  seven  years,  if  they  shall  so  long  behave  themselves  well ;  and  upon  the  ex- 
piration of  any  commission  the  same  may,  if  necessary,  be  renewed,  or  another  per- 
son appointed,  as.  shall  most  conduce  to  the  well  being  of  the  Commonwealth,  and 
they  may  be  removed  from  office  by  the  governor  with  the  consent  of  the  council, 
upon  the  address  of  two-thirds  of  the  members  present  of  each  house  of  the  Legisla- 
ture. 

Resolved,  That  it  is  inexpedient  to  retain  the  fifth  article  of  the  same  chapter  of  the 
constitution,  which  gives  jurisdiction  to  the  governor  and  council  of  causes  of  mar- 
riage, divorce,  and  alimony,  and  appeals  from  the  courts  of  probate. 

The  committee  to  whom  was  committed  the  resolution  of  the  Convention  to  con- 
sider the  propriety  and  expediency  of  providing  in  the  constitution  that  the  person  of 
a  debtor,  where  there  is  not  a  strong  -presumption  of  fraud,  shall  not  be  committed  to 
or  continued  in  prison  after  delivering  up  on  oath  or  affirmation  all  his  estate,  real 
and  personal,  for  the  use  of  his  creditors,  in  such  manner  as  shall  hereafter  be  regu- 
lated by  law,  have  attended  to  the  duty  assigned  them  and  respectfully  ask  leave  to 
report. 

That  by  the  existing  constitution,  the  Legislature  possess  full  power  to  make  the 
provision  contemplated  by  the  resolution,  if  in  its  judgment  the  public  good  require 
it ;  and,  therefore,  it  is  inexpedient  to  insert  in  the  constitution  any  specific  clause  on 
the  subject.  The  committee  beg  leave  to  report  the  accompanying  resolution  for 
the  adoption  of  the  Convention. 

All  which  is  respectfully  submitted,  by  order  of  the  committee. 

JOSEPH  STORY,  Chairman. 

Resolved,  That  it  is  inexpedient  to  insert  in  the  constitution  any  provision,  "that 
the  person  of  a  debtor,  where  there  is  not  a  strong  presumption  of  fraud,  shall  not  be 
committed  to,  or  continued  in  prison,  after  delivering  up  on  oath  or  affirmation  all  his 
estate,  real  and  personal,  for  the  use  of  his  creditors  in  such  manner  as  shall  here- 
after be  regulated  by  law. 

On  motion  of  Mr.  Story,  the  reports  were  severally  committed  to 
a  committee  of  the  whole,  ordered  to  be  printed,  and  made  the  or- 
der of  the  day  for  Monday  next,  at  12  o'clock. 

Mr.  Gurney  of  Abington  had  leave  of  absence  on  account  of  the 
sudden  death  of  his  father. 

The  House  adjourned. 


Friday,  December  1. 
The  House  met  at  10  o'clock,  and  attended  prayers  offered  by  the 
Rev.  Mr.  Jenks.     The  journal  having  been  read, 


MASSACHUSETTS    CONVENTION.  139 

The  Convention  resolved  itself  into  committee  of  the  whole  on 
the  unfinished  business  of  yesterday,  Mr.  Varnum  in  the  chair,  and 
the  further  consideration  of  the  third  resolution  was  taken  up. 

Mr.  Bliss  of  Springfield  moved  to  amend  the  report,  by  striking 
out  all  that  part  of  the  third  resolution,  after  the  word  chosen,  and 
substituting  the  following,  viz.  : 

"  From  among  the  persons  returned  for  counsellors  and  senators,  on  the  day 

of  by  the  joint  ballot  of  the  senators  and  representatives  assembled  in  Conven- 

tion, and  the  seats  of  the  persons  thus  elected  from  the  senate  shall  be  vacated  in  the 
senate,  and  the  remaining  senators  left  shall  constitute  the  senate  for  the  remainder 
of  the  year." 

Mr.  Bliss  said,  if  he  understood  the  chairman  of  the  committee 
who  made  the  report,  he  thought  the  constitution  ought  to  have 
been  construed  in  conformity  with  the  mode  which  he  now  pro- 
posed. He,  Mr.  B.,  had  no  doubt  that  this  construction  was  correct, 
and  that  it  was  the  original  intention  that  the  persons  elected  as 
counsellors  and  senators,  should  be  considered  liable  to  be  trans- 
ferred from  the  senate  to  the  council,  and,  when  selected,  that  their 
seats  should  be  vacated  in  the  senate.  Nothing,  therefore,  was 
necessary,  but  to  correct  the  improper  procedure  which  had  arisen 
under  the  constitution.  Not  more  than  a  half  a  dozen  cases  had  oc- 
curred within  twenty  years,  in  which  the  senators  elected  to  the 
council  have  accepted  the  appointment,  and  almost  all  the  persons 
elected  as  counsellors  and  senators,  have  considered  themselves 
elected,  in  fact,  only  as  senators.  He  thought  this  course  had  been 
incorrect  under  the  constitution  as  it  now  stands.  It  was  in  con- 
formity with  the  geniuS  of  the  constitution,  that  public  officers 
should  be  elected  directly,  when  it  can  be  done,  by  the  people.  He 
was  not  tenacious  of  this  particular  method ;  he  should  be  willing 
that  the  counsellors  should  be  chosen  in  districts  ;  but  as  this  propo- 
sition makes  less  alteration  in  the  original  forms  of  the  constitution, 
and  as  it  was  easy  to  correct  the  erroneous  procedure  which  had 
grown  into  practice,  from  circumstances  which  he  hoped  the  Com- 
monwealth would  not  again  be  placed  in,  he  thought  this  course 
would  be  best.  The  only  amendment  necessary  would  be  to  make 
it  peremptory  on  the  senators  elected,  either  to  vacate  their  seats 
altogether,  or  to  accept  their  appointment  to  the  council.  The 
selection  would  commonly  be  made  in  conformity  to  the  wishes  of 
persons  elected,  and  of  the  electors.  He  saw  no  difficulty  in  this 
method,  and  he  preferred  it  to  taking  away  the  choice  entirely  from 
the  people. 

Mr.  Wells  of  Boston  approved  of  the  proposition,  except  that  he 
wished  it  to  have  one  modification.  He  therefore  moved  to  amend 
the  amendment  by  inserting  the  words  "  not  more  than  one  coun- 
sellor shall  be  elected  from  one  county." 

Mr.  Bliss  said  that  this  object  was  already  provided  for  in  a  sub- 
sequent resolution  reported  by  the  committee. 

Mr.  Wells  withdrew  his  motion. 

Mr.  Dutton  thought  there  would   be  a  difficulty  in  proceeding 


140  MASSACHUSETTS    CONVENTION. 

with  the  amendment  at  this  time.  It  is  proposed  to  choose  the 
counsellors  from  the  senate,  without  liberty  to  resign.  He  under- 
stood that  the  committee  who  have  that  part  of  the  constitution 
under  consideration  which  relates  to  the  senate,  would  form  that 
body  without  any  reference  to  counsellors.  If  this  amendment  pass, 
the  council  must  be  taken  from  the  senate,  which  may  embarrass 
the  report  of  the  committee.  He  would  suggest  the  propriety  of  a 
postponement  of  the  amendment  till  that  committee  should  report. 

The  Chairman  inquired  if  the  gentleman  from  Boston  intended  to 
postpone  the  whole  resolution,  as  that  would  be  the  consequence  of 
postponing  the  amendment. 

Mr.  Dutton  did  not  insist  on  the  motion,  if  such  would  be  the 
effect. 

Mr.  Freeman  of  Sandwich  said  he  was  opposed  to  the  resolution 
of  the  committee.  The  idea  which  was  suggested  yesterday  by  the 
gentleman  from  Salem,  (Mr.  Pickman)  was  new  to  him,  that  the 
constitution  intended  that  counsellors  chosen  from  the  senate  should 
be  under  an  obligation  to  accept  the  appointment ;  but  he  was  per- 
suaded it  was  the  true  construction,  and  he  considered  it  one  of  the 
most  beautiful  features  in  the  constitution  ;  but  it  had  been  distorted 
by  the  practice  of  the  last  twenty  years.  He  was  now  more  im- 
pressed with  the  sacredness  of  the  constitution,  and  would  not 
change  it  in  this  particular.  He  objected  to  the  principle  of  the 
resolution,  as  it  was  going  to  deprive  the  people  of  a  voice  in  the 
choice  of  counsellors.  He  likewise  considered  the  senate,  or  a  por- 
tion of  it,  as  the  proper  advisers  of  the  governor,  and  on  this  ground 
was  opposed  to  the  resolution. 

Mr.  Locke  of  Billerica,  to  obviate  the  gentleman's  objection  to 
continuing  the  discussion,  mentioned  that  the  committee  on  the  part 
of  the  constitution  which  respects  the  senate,  had  proceeded  so  far  as 
to  agree  to  report  that  the  senators  should  be  distinct  from  the  coun- 
sellors, and  he  wished  that  the  question  before  the  present  committee 
might  be  determined  before  the  select  committee  on  the  senate  made 
their  report. 

Mr.  Parker  (President)  thought  there  would  be  great  incon- 
veniences in  the  mode  of  election  proposed  in  the  amendment  of  the 
gentleman  from  Springfield.  The  forty  persons  elected  as  counsel- 
lors and  senators  had  generally  been  chosen  without  any  reference 
to  their  qualifications  for  the  office  of  counsellor,  and  in  consequence 
the  practice  had  arisen  of  electing  members  from  the  senate  board 
with  the  understanding  that  they  should  resign,  and  afford  the  oppor- 
tunity of  choosing  counsellors  at  large.  The  practice  had  been  a 
disgraceful  farce,  and  ought  now  to  be  remedied.  But  the  remedy 
now  proposed  would  increase  instead  of  remedying  the  evil.  It  was 
proposed  that  seven  persons  should  be  appointed  from  the  senate, 
without  any  right  to  decline  vacating  their  seats  there.  The  gen- 
tlemen chosen  to  the  senate  generally  accept  with  the  expectation  of 
remaining  in  that  body,  because  the  chance  of  being  one  of  the 
seven  elected  to  the  council  would  be  too  small  to  influence  their 


MASSACHUSETTS    CONVENTION.  141 

determination  in  accepting  the  choice.  Any  one  so  elected  would 
be  liable  to  be  transferred  to  the  council  in  opposition  not  only  to 
his  own  wishes,  but  to  those  of  the  people  who  elected  him,  and 
deprived  of  any  voice  in  the  legislative  department  of  the  govern- 
ment.    There  is  another  objection. 

The  senate  are  elected  by  the  majority  of  votes  in  their  several 
districts,  and,  consequently,  a  majority  of  the  senate  will  be  in  con- 
currence with  the  opinions  of  the  majority  of  the  people  voting  for 
them.  But  it  will  be  in  the  power  of  the  two  branches  in  Conven- 
tion to  change  this  majority  ;  to  put  a  stop  on  the  voice  of  any  seven 
of  the  members,  to  put  them  asleep  in  the  council,  and,  thereby,  to 
change  the  majority  of  the  senate  to  a  contrary  opinion.  It  will 
thus  be  in  the  power  of  the  house  of  representatives,  which  being 
the  most  numerous  body  will  commonly  control  the  vote  in  Con- 
vention, to  take  away  the  check  which  the  senate  should  have  as 
one  of  the  branches  of  the  legislature,  by  changing  the  majority  in 
such  manner  as  to  bring  it  in  concurrence  with  the  majority  of  their 
own  body.  It  would  also  be  a  restraint  upon  the  people  in  the 
choice  of  their  senators.  There  may  be  men  willing  to  serve  in  the 
senate,  especially  if  there  is  to  be  but  one  session  of  the  Legislature, 
who  would  not  be  willing  to  be  subject  to  be  called  to  the  seat  of 
government  at  every  meeting  of  the  council.  They  would  always 
be  compelled  to  choose  men  prepared  to  perform  the  duties  of  either 
office,  without  knowing  which  it  was  to  which  they  could  be  called. 

Mr.  Foster  of  Littleton  was  opposed  to  everything  like  a  wheel 
within  a  wheel.  It  was  proper  that  the  people  should  know  what 
they  were  voting  for.  It  was  best  to  choose  senators  separately  and 
counsellors  separately.  He  thought  thirty-one  was  a  suitable  num- 
ber for  the  senate,  and  was  pleased  when  he  was  informed  that  gen- 
tlemen had  thought  of  establishing  that  number.  But  if  seven 
should  be  taken  out  of  the  senate,  it  would  be  too  much  reduced, 
and  he  hoped  the  amendment  of  the  gentleman  from  Springfield 
would  not  prevail. 

Mr.  Morton  of  Dorchester  was  in  favor  of  having  the  counsellors 
elected  by  the  people-;  and  if  it  was  proposed  to  separate  the  coun- 
sellors from  the  senators,  he  thought  that  both  might  be  conveniently 
elected  by  districts.  He  was  opposed  to  the  amendment,  as  it  would 
enable  the  majority  of  the  house  of  representatives  to  take  from  the 
senate  just  such  a  council  as  they  pleased,  and  leave  such  a  majority 
in  the  senate  as  would  coincide  with  their  own  political  views; 
since  the  amendment  prohibits  the  senators  declining  to  act  as  coun- 
sellors when  designated  for  that  purpose.  He  thought  that  if  thirty- 
one  was  to  be  the  number  fixed  upon  for  the  senate,  the  gentleman 
himself  who  offered  the  amendment  would  be  unwilling  to  take  so 
many  as  seven  from  that  body. 

Mr.  Bliss  was  not  satisfied  of  the  force  of  the  objections  which 
had  been  made  to  his  amendment.  Gentlemen  had  not  shown  that 
it  was  not  conformable  to  the  spirit  of  the  constitution.  The  gen- 
tleman from  Boston  (Mr.  Parker)  had  said  that  in  the  election  of 


142  MASSACHUSETTS     CONVENTION. 

senators,  the  people  did  not  consider  that  they  were  choosing  coun- 
sellors also  ;  it  might  be  the  case.  But  if  the  original  intention  of 
the  constitution  was  otherwise,  he  wished  to  say  to  that  gentleman, 
and  to  others,  that  his  amendment  went  to  restore  the  spirit  of  the 
constitution.  If  the  choosing  of  the  counsellors  from  the  senate  was 
now  become  a  matter  of  form,  it  was  not  so  once.  It  was  clearly  a 
violation  of  the  constitution,  and  ought  to  be  corrected.  The  peo- 
ple might  be  easily  made  to  understand  that  they  were  choosing 
counsellors  as  well  as  senators,  and  they  would  then  select  proper 
candidates  accordingly.  It  was  said,  too,  that  if  this  amendment 
prevailed,  a  senator  might  be  made  a  counsellor  without  his  consent. 
This  was  not  the  case  ;  for  the  candidates  for  the  senate  would 
know  their  liability  to  be  transferred  to  the  council  board,  and  of 
course  would  consent  to  it  by  becoming  candidates.  Another  objec- 
tion was,  that  the  counsellors  would  not  be  chosen  by  districts  in 
this  mode  ;  here  again  was  a  mistake,  as  there  was  a  subsequent 
provision  to  be  made  in  the  constitution,  that  the  two  houses  of  the 
Legislature,  in  convention,  should  have*  regard  to  districts  in  the 
choice  of  counsellors. 

Mr.  Webster  said  he  had  an  objection  to  the  proposed  amend- 
ment, somewhat  more  general  than  those  which  had  been  already 
suggested.  The  Convention  had  already  expressed  its  almost  unan- 
imous sense,  in  favor  of  the  great  principle  of  a  division  of  the 
Legislature  into  two  branches,  each  having  a  negative  upon  the 
other.  This  proposition  it  had  adopted,  in  consequence  of  a  sug- 
gestion of  the  Hon.  member  from  Q,uincy.  He  (Mr.  W.)  looked  on 
this  as  a  most  important  declaration.  It  was  giving  the  sanction  of 
our  own  experience  for  forty  years,  to  a  proposition  much  dis- 
puted and  contested  at  the  time  of  our  revolution.  Now,  he  thought, 
the  proposed  amendment  entirely  destructive  of  this  principle.  Its 
tendency  was  to  enable  one  branch  to  control  the  other.  The 
amendment  provides  that  the  persons  elected  counsellors,  whether 
they  accept  or  not,  shall  leave  their  seats  in  the  senate.  Now  the 
choice  of  counsellors  is  to  be  made  by  the  joint  vote  of  the  two 
houses.  But  as  the  house  of  representatives  is  much  the  most  nu- 
merous, the  voice  of  that  house  is  of  course  usually  much  the 
strongest — therefore  the  effect  must  be,  that  the  house  of  represent- 
atives can  put  out  of  the  senate  seven  of  the  members  at  pleasure. 
But,  considering  the  limited  number  of  the  senate,  this  power  of 
removing  seven  members  at  will,  would  be  a  most  controlling  influ- 
ence. It  would  very  often  alter  the  majority.  The  proposition 
then,  was  neither  more  or  less,  than  that  the  house  might  compel 
seven  senators  to  vacate  their  seats ; — a  number  which  very  often 
would  alter  the  general  complexion  of  the  senate.  This  was,  in 
effect,  giving  the  house  a  power  to  mould  the  senate  to  its  purposes. 
What  would  be  said  of  a  proposition  to  authorize  the  senate  to  send 
fifty  members  of  the  house  on  any  service,  incompatible  with  their 
holding  their  seats?  Yet  seven  to  the  senate  was  probably  as  many 
as  fifty  to  the  house.     In  short,  the  proposed  amendment  appeared 


MASSACHUSETTS     CONVENTION.  143 

to  him  to  destroy  the  whole  balance  of  the  constitution.  It  was  to 
give  to  one  branch  of  the  Legislature  the  power  to  arrange,  and 
modify,  and  control,  and  new  organize  the  other.  This  he  thought 
contrary  to  first  principles,  and  therefore  was  opposed  to  it. 

Mr.  Pickman,  with  a  view  of  meeting  the  objections  which  had 
been  made  by  gentlemen,  moved  in  place  of  the  third  resolution,  to 
substitute  the  following  : 

Resolved,  That  it  is  expedient  to  alter  and  amend  the  constitution  of  this  Common- 
wealth, by  providing  that  the  second  article  of  the  3d  section  of  the  2d  part,  relating 
to  the  council,  shall  be  in  substance  as  follows : 

Seven  counsellors  shall  be  annually  chosen  on  the  1st  Wednesday  of  January,  by  the 
joint  ballot  of  the  senators  and  representatives,  assembled  in  one  room,  from  among 
the  people  at  large,  including  therein  the  house  of  representatives — and  the  counsel- 
lors shall  have  the  same  qualifications  as  are  required  by  this  constitution  for  senators 
of  the  Commonwealth,  and  it  shall  be  the  duty  of  the  Legislature,  before  the  close 
of  the  January  session,  to  fill  up  any  vacancy  or  vacancies  which  may  exist  in  the 
council  by  reason  of  death,  resignation,  or  failure  to  have  been  qualified,  which  shall 
be  considered  as  a  resignation,  or  from  any  other  cause  in  the  manner  before  prescribed. 

Mr.  P.  said,  that  in  the  discussion  yesterday,  it  was  suggested  that 
it  would  be  expedient  that  counsellors  should  be  required  to  have 
some  qualifications,  and  also  that  there  should  be  a  provision  for 
supplying  vacancies.  He  had  framed  his  amendment  to  meet  both 
suggestions.  He  thought  it  would  be  most  expedient  that  the  coun- 
sellors should  be  chosen  by  the  Legislature.  The  gentleman  from 
Springfield,  (Mr.  Bliss)  was  in  favor  of  their  being  chosen  by  dis- 
tricts. Mr.  P.  thought  a  more  inexpedient  way  could  not  be  devised 
— and  for  himself,  he  almost  abhorred  the  word  districts,  they  had 
been  the  cause  of  so  much  mischief  in  the  United  States.  If  the 
choice  should  be  by  districts,  men  of  different  political  sentiments 
would  be  likely  to  be  chosen,  and  thus  the  wheels  of  government 
might  be  stopped.  If  the  counsellors  were  to  be  chosen  by  the 
people  the  preferable  mode  would  be  by  the  whole  people,  and  not 
by  districts ;  but  both  modes  were  objectionable. 

Mr.  Apthorp  of  Boston  said  he  was  originally  so  much  in  favor 
of  the  resolution  reported,  and  he  had  heard  so  few  arguments  of 
any  weight  against  it,  that'  he  must  oppose  this  amendment.  He 
argued  that  the  amendment  which  had  been  suggested  with  respect 
to  the  qualifications  of  counsellors,  might  be  very  properly  added  to 
the  resolution.  He  thought  there  would  be  more  harmony  in  the 
council  chosen  by  the  Legislature  in  convention,  than  if  it  were 
chosen  by  the  people,  as  some  gentlemen  wished. 

Mr.  L.  Lincoln  of  Worcester  understood  the  amendment  to  con- 
tain three  propositions,  two  of  them  respecting  the  qualifications  of 
the  persons  to  elect  and  to  be  elected,  and  the  third  respecting  the 
supplying  of  vacancies  at  the  council  board.  He  was  in  favor  of 
the  two  first,  but  objected  to  the  last  because  the  Legislature  could 
not  know  until  the  time  of  its  adjournment  that  a  counsellor  would 
not  come  in  and  claim  his  seat  and  be  qualified  as  counsellor ;  con- 
sequently there  would  be  no  time  for  them  to  appoint  a  successor  in, 
case  the  person  first  chosen  should  not  come  in  to  be  qualified.     He 


144  MASSACHUSETTS    CONVENTION. 

rose  therefore  to  propose  a  division  of  the  question.  There  was  also 
an  ambiguity  in  the  phraseology  of  the  gentleman's  amendment  in 
respect  to  the  words  "people  at  large;"  as  both  branches  of  the 
Legislature  were  to  join  in  the  ballot,  this  phrase  might  be  thought 
to  exclude  members  of  the  house  of  representatives  from  being 
counsellors.  It  might  be  very  proper  that  representatives  should  be 
taken  for  counsellors,  as  their  places  might  be  easily  supplied  by  a 
new  election.  Mr.  L.  wished  that  the  first  part  of  the  gentleman's 
amendment  might  be  amended  by  striking  out  "the  people  at  large," 
and  inserting,  "  provided  however  that  no  person  shall  be  eligible  to 
the  office  of  counsellor,  who,  at  the  time  of  the  election,  has  a  seat 
in  the  senate." 

The  Chairman  said  there  could  be  no  division  when  the  motion 
was  to  strike  out  and  insert. 

Mr.  L.  was  aware  of  the  rule,  but  there  ought  to  be  some  mode 
of  bringing  the  propositions  distinctly  before  the  committee  :  other- 
wise they  would  be  under  a  necessity  of  adopting  a  good  principle 
together  with  a  bad  one,  or  rejecting  both. 

The  Chairman  replied,  that  if  the  whole  is  rejected,  the  parts 
can  be  brought  forward  separately. 

Mr.  Pickman  said,  if  he  understood  the  gentleman  from  Worcester, 
he  had  no  objection  to  his  proposition. 

Mr.  Dana  said  great  difficulties  had  arisen  from  the  minuteness  of 
the  propositions  which  has  been  brought  before  the  committee.  He 
had  hoped,  after  the  proposition  of  the  gentleman  from  Boston, 
(Mr.  Jackson)  that  they  should  have  been  more  attentive  to  the  set- 
tling of  principles. 

Mr.  Bliss  was  as  much  opposed  to  this  resolution  as  he  was  to 
that  which  was  reported  by  the  select  committee,  and  for  the  same 
reason.  He  was  entirely  dissatisfied  with  any  modification  of  this 
principle,  and  satisfied  that  the  choice  ought  to  be  by  the  people  in 
some  mode  or  other.  If  it  was  unpleasant  to  talk  about  districts  we 
might  substitute  some  other  word,  but  this  was  as  good  as  any. 
He  thought  the  people  were  not  in  danger  of  being  imposed  upon 
by  an  improper  division  of  the  state  into  districts  for  this  important 
election — an  election  which  was  becoming  more  and  more  impor- 
tant every  year,  by  the  additional  duties  which  were  imposed  upon 
the  council  by  the  Legislature.  Divisions,  it  was  true,  between 
the  governor  and  council,  on  political  subjects,  were  unpleasant. 
But  if  the  people  are  divided,  the  difficulty  cannot  be  avoided. 
Gentlemen  would  recollect  two  instances,  under  different  governors, 
when  there  was  a  difference  of  political  opinions,  between  the  gov- 
ernor and  his  council,  chosen  under  the  present  constitution.  This 
was  an  unpleasant  occurrence,  which  he  hoped  would  not  occur 
again,  though  it  might  in  the  proposed  mode  of  choosing.  He  saw 
no  reason  why  the  people  should  not  elect  according  to  the  original 
spirit  of  the  constitution.  He  was  not  prepared  with  any  motion 
•for  giving  the  choice  to  the  people,  but  he  thought  if  they  were 
chosen  in  districts,  the  people  would  be  better  represented.     There 


MASSACHUSETTS     CONVENTION.  145 

could  be  no  evil  from  districting  the  Commonwealth  in  such  manner 
that  one  counsellor  should  be  chosen  from  each  district.  It  was  not 
necessary  that  the  districts  should  be  adjusted  with  great  nicety,  or 
be  frequently  changed.  It  might  be  done  either  by  the  convention, 
to  be  permanent,  or  by  the  Legislature,  after  each  valuation. 

Mr.  Lincoln's  amendment  was  then  read,  and  accepted  by  Mr. 
Pickman  as  a  modification  of  his  motion,  viz.,  to  strike  out  the 
words  "from  the  people  at  large,"  and  insert  at  the  end,  the  follow- 
ing: '-'Provided  however  that  no  person  shall  be  eligible  to  the 
office  of  counsellor,  who,  at  the  time  of  the  election,  has  a  seat  in 
the  senate." 

Mr.  Blake  opposed  the  amendment  on  the  ground  that  it  was 
abridging  the  rights  of  the  people.  He  preferred  choosing  by  dis- 
tricts to  the  mode  now  proposed. 

Mr.  Flint  of  Reading  rose  to  offer  the  reasons  upon  his  mind  in 
favor  of  the  proposition  now  before  the  committee.  He  thought  it 
was  conformable  with  the  spirit  of  the  constitution,  as  it  was  origi- 
nally framed, and  with  the  practice  under  it,  to  require  that  the  coun- 
sellors should  be  chosen  in  the  first  instance  from  the  people  at  large. 
The  only  change  was,  that  senators  would  be  chosen  to  serve  in  the 
senate  only,  and  the  counsellors  would  be  chosen  by  representatives 
from  every  town,  and  senators  from  every  county  in  the  Common- 
wealth, elected  by  the  people  with  the  express  understanding  that 
they  were  to  choose  counsellors  as  well  as  to  perform  their  other 
duties.  The  representatives  and  senators  coming  together  for  this 
purpose  would  be  better  qualified  to  select  proper  persons  for  coun- 
sellors than  the  few  persons  who,  if  the  State  were  districted,  would 
assemble  in  the  districts  to  make  nominations.  The  governor 
wanted  a  good  council,  and  persons  of  different  qualifications — a 
military  man — a  good  lawyer — a  good  farmer — and  many  of  them 
are  well  educated — many  different  professions.  The  two  houses  in 
convention  would  have  the  best  opportunity  for  making  a  proper  se- 
lection. The  right  of  making  this  appointment  may  be  conferred 
by  the  people,  or  the  members  of  the  two  houses,  with  the  same  pro- 
priety that  the  right  of  making  appointments  to  important  offices  is 
conferred  on  the  governor  and  council.  Most  people  are  not  ac- 
quainted with  the  candidates  for  office  in  large  districts,  and  must 
depend  upon  a  few  individuals  to  make  the  selection.  He  thought 
that  the  members  of  the  two  houses  in  convention,  would  be  quali- 
fied to  make  the  most  proper  selection. 

Mr.  Saltonstall  of  Salem  said  that  he  had  been  anticipated  in  a 
part  of  the  remarks  which  he  intended  to  make,  by  the  gentleman 
from  Reading.  But  he  wished  to  say  a  few  words  in  addition. 
The  gentleman  from  Boston  (Mr.  Blake)  would  consent  to  no  change 
in  the  constitution  which  was  not  shown  to  be  necessary.  Yet  he 
was  opposed  to  the  mode  of  election  of  counsellors  by  the  two 
houses  in  convention,  from  the  people  at  large,  and  proposed  to 
choose  them  in  districts.  Mr.  S.  contended  that  the  first  mode  was 
conformable  to  the  spirit  of  the  existing  constitution,  and  the  other 
19 


146  MASSACHUSETTS     CONVENTION. 

was  a  material  and  unnecessary  change.     He  read  a  passage  from 
the  constitution,  to  show  that  it  was  not  the  intention  or  expectation 
of  the  framers  of  it  that  the  members  chosen  from  the  senate  to  the 
council  should  be  required  to  accept  a  seat  at  the  council  board. 
"In  case  there  shall  not  be  found  upon  the  first  choice  the  whole 
number  of  nine  persons  who  will  accept  a  seat  in  the  council,"  the 
deficiency  to  be  made  up  from  among  the  people  at  large.     There 
is  no  direction  to  supply  the  vacancy  from  the  senate,  and  it  seems 
to  be  supposed  that  they  may  decline.     It  must  have  been  foreseen 
that  there  might  often  be  very  proper  reasons  why  they  should  de- 
cline.    If  they  did  not,  it  would  often  happen  that  the  check  of  the 
senate  upon  the  other  house  would  be  destroyed,  and  accordingly 
it  had  been  the  practice  from  the  beginning  that  they  should  decline. 
There  were  various  reasons  for  their  doing  it.     They  might  be 
needed  in  the  senate  to  preserve  the  majority  there  that  the  people 
had  given.     Some   might   be  chosen  who   were  willing  to  serve  as 
senators,  but  not  as  counsellors.     It  had  therefore  been  the  practice 
from  the  beginning  for  many  to  decline,  and  for  twenty  years  past 
the  practice  had  been  invariable  for  all  to  decline.     It  was  therefore 
conformable,  both  to  a  fair  interpretation  of  the   instrument  itself, 
and  to  the  construction  that  had  been  given  to  it  by  the  practice  of 
forty  years,  approved  by  the   people,  that  the   council  should  be 
wholly  or  in  part  chosen  from  the  people  at  large.     It  was  not  ex- 
pected by  the  people  when  they  chose  their  senators,  that  they  would 
accept  the  appointment  of  counsellor.     There  were  important  rea- 
sons why  there  should  be  liberty  to  fill  this  office  from  the  people  at 
large.     Qualifications  were  looked  for  which  were  not  necessary  for 
the  senate.     A  variety  of  talents  and  qualifications  was  required  in 
the  members  of  the  council,  which  would  not  be  expected  if  they 
were  chosen  in  districts.     There  could  then  be  no  concert.     They 
might  be  all  lawyers — or  all  military  men — and  none  particularly 
qualified  for  taking  charge  of  some  important  departments  of  the 
office.     Gentlemen  chosen  to  that  board  would  look  round  and  not 
find  those  to  assist  them  whom  they  had  been  accustomed  to  meet 
there.     He  mentioned,  also,  the  difficulty  of  forming  the  districts. 
It  would  be  difficult  at  the  present  moment  to  divide  the  State  into 
seven  districts   in   a  manner  that  should  give  satisfaction,  and  the 
difficulty  might  be  at  another  time  much  greater.     He  hoped  that 
the  measure   would  not  be  resorted  to.     It  was  only  necessary  to 
make  the  mode  of  choice  what  it  had  been  in  practice  for  the  last 
twenty  years. 

Mr.  Baldwin  of  Boston  said  it  would  be  an  objection  to  taking 
the  seven  senators  from  the  senate ;  if  it  were  to  consist  of 
thirty-one,  that  it  would  leave  an  even  number  and  deprive  the  pres- 
ident of  the  casting  vote.  It  would  be  difficult  to  choose  from  the 
people  at  large,  except  through  the  representatives.  It  was  of  little 
consequence  from  what  part  of  the  State  they  were  chosen,  if  they 
were  fit  persons.  It  was  an  objection  to  taking  them  from  the  senate 
that  where  counties  were  entitled  to  but  one  senator  they  would  be 


MASSACHUSETTS     CONVENTION.  147 

deprived  of  their  representation  if  he  were  chosen  to  the  counsel. 
•  The  people  feel  a  greater  interest  in  the  legislative  business  than  in 
that  of  the  counsel.  No  one  had  a  more  profound  homage  for  a 
government  of  the  people  than  himself.  But  there  appeared  to  be 
insuperable  difficulties  in  giving  to  the  people  directly,  the  choice  of 
counsellors.  The  members  of  the  two  houses  in  convention  could 
have  their  eyes  on  every  part  of  the  Commonwealth. 

Mr.  Dutton  considered  the  amendment  in  its  present  form,  as 
presenting  the  same  distinct  proposition,  as  the  resolution  of  the  se- 
lect committee.  They  both  provide  that  the  counsellors  shall  be 
chosen  from  the  people  in  exclusion  of  the  senators  by  the  joint 
ballot  of  both  houses.  It  was  with  reference  only  to  a  choice  by 
the  Legislature,  or  by  the  people  in  some  form  or  other,  that  he  in- 
tended to  consider  the  amendment.  A  choice  by  the  Legislature 
from  the  people  at  large  was  the  most  simple  and  convenient.  It 
got  rid  of  the  ceremony  of  first  choosing  senators,  and  conformed 
the  theory  of  the  constitution  to  the  practice  under  it.  The  practice 
was  the  result  of  the  strong  political  necessity  of  keeping  the  power 
of  the  majority  in  the  hands  of  the  majority.  As  matter  of  theory, 
or  abstract  principle,  he  might  agree  with  the  gentleman  from 
Springfield  ;  but  experience  has  shown  us  that  parties  do,  and  always 
will  exist ;  and  that  the  provision  of  the  constitution  could  not  be 
literally  complied  with,  without  endangering  an  important  principle 
of  government.  The  importance  of  this  principle  has  been  so 
clearly  and  forcibly  stated  by  the  gentleman  from  Boston,  that  noth- 
ing need  or  can  be  added.  He  was  also  satisfied  with  the  argument 
of  the  gentleman  from  Salem,  that  the  practice  of  the  last  twenty 
years  was  not  a  departure  from  the  spirit  of  the  constitution.  The 
amendment  provides  that  the  Legislature  shall  elect.  Gentlemen 
who  have  opposed  this  mode  have  said  that  the  people  should  elect 
in  districts.  These  are  the  two  modes  presented :  and  he  would 
confine  his  remarks  chiefly  to  the  statement  of  some  objections  to  an 
election  by  the  people  in  districts.  Who  shall  form  these  districts  ? 
It  is  said  the  Legislature.  Will  this  Convention  then  shrink  from  this 
task  and  throw  it  upon  the  discretion  of  the  Legislature,  where  it 
will  become  connected  with  party  interests  and  passions,  and  there 
remain  the  subject  of  contention  and  cabal,  in  all  the  bitterness  of 
party  spirit.  There  must  be  seven  districts  only.  As  these  would 
be  large,  it  would  be  difficult  for  the  people  to  select  the  can- 
didates. In  some  districts  there  would  be  no  choice — another,  and 
perhaps  another  trial  must  be  had,  before  the  elections  could  be 
completed.  Four  of  the  counsellors  chosen  might  be  of  one  political 
party,  and  three  of  another,  and  as  the  lieutenant  governor  is  ex- 
officio  a  member  of  the  council,  there  would  be  an  equal  division. 
The  executive  department  then,  which,  as  its  title  imports,  is  to 
carry  into  effect,  to  execute,  to  act,  might  be  obstructed  by  a  divided 
counsel,  at  a  moment  too,  when  it  was  important  to  act  promptly. 
He  was  in  favor  of  checks  and  balances  in  the  government,  as  much 
as  any  gentleman,  but  he  was  also  in  favor  of  introducing  them  in  the 


148  MASSACHUSETTS    CONVENTION. 

right  place.     In  his  opinion  the  executive  department  was  not  that 
place,  because  it  would  tend  to  embarrass  or  defeat  the  fair  exercise  . 
of  the  will  of  the  majority. 

Mr.  Freeman  of  Sandwich  had  been  in  favor  of  the  proposition 
of  the  gentleman  from  Springfield,  because  the  object  of  it  was  to 
place  the  constitution  where  it  originally  was.  He  hoped  that  no 
alteration  would  be  made  in  the  original  feature  of  the  constitution, 
unless  to  give  the  choice  directly  to  the  people.  He  never  would 
consent,  without  his  testimony  against  it,  to  taking  the  election  from 
the  people.  If  the  constitution  must  be  altered  in  this  respect,  he 
would  abolish  the  council  altogether.  So  that  the  governor  who  is 
chosen  by  the  people  should  act  upon  his  own  responsibility. 

Mr.  Lincoln  of  Worcester  did  not  rise  to  enter  into  an  argument 
but  merely  to  state  his  reasons  for  the  vote  he  should  give.  He  al- 
ways rejoiced  when  he  saw  gentlemen  disposed  to  pay  deference  to 
the  will  of  the  people.  It  was  because  he  regarded  the  rights  of 
the  people,  and  wished  to  secure  the  expression  of  the  will  of  the 
people  on  republican  principles,  that  he  was  inclined  to  advocate 
the  resolution.  He  asked  gentlemen  to  consider  the  arrangement 
which  was  to  be  made  for  the  organization  of  the  government.  The 
governor,  representatives  and  senators  being  elected  on  one  day,  there 
would  not  often  be  a  difference  of  political  character  between  the 
executive  and  the  legislature.  The  security  of  republican  govern- 
ments rested  on  the  distribution  of  powers  between  the  three  branches, 
the  executive,  legislative  and  judiciary.  The  security  of  the  rights 
of  the  people  depended  on  this  distribution.  Much  security  has  al- 
ready resulted  from  the  check,  which  by  this  distribution  is  given 
to  one  branch  over  another.  If  you  destroy  the  legislative  branch, 
you  give  an  excess  of  power  to  the  executive — paralyze  the  arm 
of  the  executive,  and  you  give  too  much  strength  to  the  legislature. 
The  council  is  a  component  part  of  the  executive.  If  a  majority 
of  the  people  are  disposed  to  elevate  an  individual  of  a  certain  polit- 
ical character  to  the  head  of  the  government,  and  you  surround  him 
by  a  council  of  a  different  character,  you  defeat  the  will  of  the  peo- 
ple. A  majority  of  the  council  chosen  in  districts  may  be  of  a  polit- 
ical character  opposed  to  that  of  the  governor  chosen  by  a  majority 
of  the  whole  people,  and  may  control  all  his  measures.  What  then 
is  the  alternative  ?  To  choose  by  the  Legislature  or  by  the  people 
by  a  general  ticket.  There  were  objections  to  a  general  ticket, 
which  he  stated,  and  which  were  insuperable.  To  form  districts  it 
would  be  necessary  to  form  an  unnatural  alliance  between  different 
parts,  to  unite  county  to  county,  where  there  was  no  community  of 
feeling  or  interest.  If  the  people  elected  a  man  to  the  office  of  gov- 
ernor, they  wished  the  office  should  be  pleasant  to  him,  and  that  he 
should  be  surrounded  by  a  council  whose  political  sentiments  were 
in  unison  with  his  and  their  own.  In  support  of  the  proviso,  in  re- 
lation to  elections  from  the  senate,  Mr.  L.  said  that  there  were  rea- 
sons against  admitting  senators  which  did  not  exist  against  repre- 
sentatives.    If  a  senator  is  chosen  to  the  council  his  place  must  remain 


MASSACHUSETTS    CONVENTION.  149 

vacant — if  a  representative,  his  place  may  be  supplied  by  a  new 
election.  If  representatives  were  to  be  excluded  from  the  council, 
it  might  operate  to  prevent  some  gentlemen  from  becoming  candi- 
dates, and  the  services  of  useful  men  would  thus  be  lost. 

Mr.  Blake  was  not  convinced  by  the  arguments  which  he  had 
heard.  The  course  of  reasoning  which  gentlemen  had  adopted 
would  lead  to  the  result  that  every  object  of  government  should  be 
accomplished  by  the  agency  of  a  few  individuals.  Difficulties  and 
confusion  might  be  apprehended  from  popular  elections,  and  all 
might  be  saved  by  delegating  the  right  to  a  few  persons.  It  was 
objected  to  districts  that  new  associations  of  counties  tended  to  pro- 
duce confusion ;  there  was  the  same  objection  to  districting  the 
Commonwealth  for  the  choice  of  senators.  Yet  this  had  always 
been  done.  Several  counties  were  frequently  united  and  no  diffi- 
culty had  arisen.  He  repeated  that  he  was  opposed  to  the  principle 
of  the  report,  because  it  was  an  abandonment  of  an  important  prin- 
ciple of  the  constitution.  It  could  not  be  doubted  that  it  was  the 
intention  of  the  constitution,  that  the  persons  chosen  from  the 
senate  should  serve  as  counsellors.  There  was  nothing  to  show  that 
the  mockery  of  choosing  members  of  the  senate,  only  that  they 
might  decline,  was  ever  intended.  There  was  no  more  ground  for 
supposing  that  it  was  intended  that  they  should  resign  than  that  the 
governor  should.  By  this  change  we  abandon  an  important  and 
fundamental  principle  of  the  government  for  no  reason.  There 
should  be  chosen  a  sufficient  number  of  counsellors  and  senators  for 
both  offices.  The  clause  in  the  constitution  was  intended  only  to 
provide  for  a  contingency  not  expected  often  to  happen.  He  was 
not  in  favor  of  taking  from  the  people  any  right  however  small  which 
may  be  made  a  precedent  for  further  encroachments. 

Mr.  Webster  wished  to  know  what  was  the  precise  state  of  the 
question.  He  did  not  understand  whether  the  proviso,  suggested 
by  the  gentleman  from  Worcester,  was,  in  itself,  a  proposition  to 
amend,  or  whether  the  mover  of  the  resolution  (Mr.  Pickman)  had 
accepted  it  as  a  part  of  his  motion.  After  some  conversation,  it  was 
said  that  the  proviso  was  accepted  by  the  mover,  as  a  part  of  his 
motion.  Mr.  Webster  then  moved  to  strike  out  the  proviso.  His 
reason  was  that  it  was  introducing  quite  a  new  ground  of  exclusion. 
We  were  accustomed  to  the  doctrine  that  offices,  thought  to  be  in- 
compatible, could  not  be  liolden  by  one  person  at  the  same  time. 
But  this  was  quite  a  new  question.  Here  it  was  to  be  decided  that 
a  man  holding  one  office,  could  not  be  voted  for,  for  another.  He 
had  opposed  the  compulsory  election  of  counsellors  out  of  the  senate, 
and  he  now  opposed  any  restriction  in  this  particular  on  the  Legis- 
lature. It  was  fit  to  leave  it  free.  There  is  no  more  reason  why 
the  Legislature  should  not  choose  counsellors  out  of  the  senate,  than 
why  they  should  not  choose  other  officers,  viz.,  secretary,  treasurer, 
&c,  out  of  it — or  than  that  the  governor  should  be  forbidden  to 
choose  a  judge,  or  an  attorney  general  out  of  the  senate.  Hereto- 
fore, the  constitution   has   known  no  such  exclusion  as  this.     The 


150  MASSACHUSETTS    CONVENTION. 

Legislature  ought  to  be  free  to  choose  a  council.  If  a  member  of 
the  senate  is  chosen,  it  is  for  him  to  decide  whether  he  will  accept — 
in  the  same  manner  as  if  any  other  office  were  offered  to  him.  He 
disliked  the  introduction  of  this  new  principle.  It  was  not  to  be 
found  in  this  or  any  constitution.  He  hoped  it  would  not  be  adopted. 
While  he  opposed,  with  some  zeal,  a  power  to  compel  senators  to 
relinquish  their  seats,  he  opposed  also  a  new  and  unheard  of  restric- 
tion on  the  power  of  the  Legislature,  and  on  the  will  and  discretion 
of  individuals.  This  was  a  case  in  which  he  thought  there  was 
danger  of  too  much  regulation. 

Mr.  Pickman  said  that  this  principle  of  exclusion  was  found  in 
our  own  constitution,  as,  after  one  choice  of  counsellors  was  made 
from  the  senate,  and  the  counsellors  chosen  declined,  the  other  sen- 
ators would  not  be  eligible. 

The  question  for  striking  out  the  proviso  was  taken  and  decided 
in  the  negative — 88  to  222. 

The  question  recurred  upon  the  amendment  of  the  gentleman  from 
Salem,  and  after  some  further  discussion,  it  was  withdrawn  by  the 
mover. 

Mr.  Parker  (the  President)  offered  a  resolution  as  a  substitute 
for  that  reported  by  the  select  committee,  which  he  afterwards  with- 
drew. 

A  motion  was  made  that  the  committee  rise,  which  was  negatived. 

The  question  was  then  taken  on  the  resolution  reported  by  the 
select  committee  and  decided  in  the  affirmative — 221  to  172. 

On  motion  of  Mr.  Bliss,  the  committee  rose  and  reported  progress. 

A  motion  was  made  that  the  committee  be  discharged,  in  order 
that  the  subject  might  be  referred  again  to  the  select  committee, 
which  was  negatived. 

Adjourned. 


Saturday,  December  2. 

The  Convention  met  at  10  o'clock,  and  yesterday's  journal  was 
read. 

Mr.  Hoyt  of  Deerfield  moved  that  after  this  day,  the  Convention 
should  hold  two  sessions  in  a  day.  He  said  that  he  understood  that 
all  the  committees  to  whom  the  several  parts  of  tlie  constitution 
were  referred  were  ready  to  report,  and  he  thought  the  Convention 
would  be  prepared  to  proceed  more  expeditiously  by  holding  an 
afternoon  session.  He  stated  two  reasons  for  making  the  motion, 
1st,  to  relieve  the  minds  of  gentlemen  who  were  apprehensive  that 
the  session  was  likely  to  last  through  the  whole  winter,  and  2d,  the 
importance  of  diminishing  the  expense  to  the  Commonwealth,  as 
every  dollar  which  the  Convention  costs  must  be  provided  for  by 
some  extra  means,  because  the  ordinary  revenues  of  the  State  were 
not  competent  to  defray  it.     The  question  being  about  to  be  put, 

Mr.  Story  of  Salem  said  he  hoped  the  House  would  at  least  delib- 
erate a  moment  upon  the   expediency  of  this  measure.     The  Con- 


MASSACHUSETTS    CONVENTION.  151 

vention  was  not  a  body  assembled  to  consider  merely  an  affair  of 
today,  but  to  revise  the  constitution  throughout,  and  to  adopt  meas- 
ures which  are  to  be  binding  on  posterity.  He  would  not  say  how 
able  other  gentlemen  might  be  to  act  always  correctly  upon  the 
most  important  questions,  on  the  spur  of  the  occasion.  They  might 
think  their  talents  fully  competent  to  proceed  in  this  manner.  But, 
for  himself,  he  did  not  feel  able  to  proceed  without  deliberation. 
It  required  the  deliberate  exercise  of  all  the  talents  which  he  pos- 
sessed to  enable  him  to  act  satisfactorily  upon  the  propositions  which 
came  in  succession  before  the  Convention,  and  he  believed  there 
were  other  gentlemen  in  the  same  situation.  It  was  with  the 
greatest  difficulty  that  he  could  watch  the  progress  of  business  as  it 
was  already  conducted.  Resolution  after  resolution  of  the  greatest 
importance  to  us  and  to  posterity,  was  brought  forward  and  acted 
upon,  without  giving  that  opportunity  for  deliberation  in  our  closets, 
which  is  indispensable  for  forming  a  mature  conclusion.  What  will 
be  the  consequence  if  this  resolution  is  adopted?  Every  moment 
not  necessarily  devoted  to  sleep  will  be  employed  in  carrying  busi- 
ness rapidly  through  this  House.  It  was  of  great  importance  that 
there  should  be  opportunity  for  each  member  duly  to  deliberate 
upon  the  subjects  debated  here,  and  to  revise  the  decisions  here 
made.  It  often  happened  that  after  hearing  a  proposition  argued 
with  great  power  in  the  House  he  formed  his  opinion  for  the  mo- 
ment in  favor  of  it :  but  on  calm  deliberation  in  his  closet,  he  found 
occasion  to  change  his  opinion.  Should  there  be  no  opportunity 
for  this  ?  If  we  mean  to  propose  amendments  Avhich  the  people  will 
not  adopt,  it  would  be  better  not  to  revise  the  constitution  at  all. 
But  if  we  look  to  the  benefit  of  our  children  and  posterity,  we  must 
take  full  time  for  deliberation,  and  not  hurry  through  the  business 
in  such  a  manner  that  it  cannot  be  understood.  Of  what  conse- 
quence is  it  to  save  a  few  thousand  dollars  compared  with  the  mag- 
nitude of  the  object,  if  the  result  of  our  deliberations  is  to  be  such 
that  posterity  will  derive  substantial  benefit  from  them  ?  New 
propositions  are  submitted  to  this  Convention,  involving  important 
principles,  and  we  are- called  upon  to  say  in  a  moment,  whether  we 
will  accept  or  reject  them.  He  was  unable  to  go  along  with  the 
business,  as  it  was  hurried  already.  If  it  was  to  be  pushed  faster, 
what  would  be  the  consequence  ?  Our  minds  are  called  into  action 
for  the  whole  day,  new  propositions  are  offered  and  debated  from 
hour  to  hour ;  we  are  required  to  sit  here  until  we  are  exhausted 
in  mind  and  body,  and  no  opportunity  is  afforded  to  review  our  de- 
liberations at  home.  He  considered  the  opportunity  to  revise  and 
weigh  the  propositions  offered,  out  of  the  House,  as  essential  for 
coming  to  wise  results,  as  the  debates  here.  He  hoped  the  motion 
would  not  prevail.  It  was  no  object  to  pass  through  as  much  busi- 
ness as  possible  in  a  given  time,  at  the  hazard  of  adopting  fifty  reso- 
lutions, which,  on  mature  deliberation,  we  should  be  disposed  to 
reject. 


152  MASSACHUSETTS    CONVENTION. 

Mr.  Lawrence  of  Groton  hoped  the  motion  might  be  withdrawn 
until  all  the  committees  had  made  their  reports. 

Mr.  Apthorp  of  Boston  was  as  little  satisfied  as  any  one  with 
the  slow  progress  which  was  made  in  the  business  of  the  Conven- 
tion. He  suggested  that  the  object  of  the  gentleman  from  Salem  of 
obtaining  time" for  examination  and  deliberation  would  be  gained  if 
the  House  would  meet  at  a  later  hour,  and  it  might  then  be  practi- 
cable to  hold  two  sessions  in  a  day.  He  hoped  that  the  gentleman 
would  withdraw  his  motion  for  the  reason  given,  and  when  he  re- 
newed it,  -he  would  bring  it  forward  in  a  different  form.     • 

Mr.  Hoyt  declined  withdrawing  his  proposition.  He  thought  the 
time  had  arrived  when  we  might  proceed  more  expeditiously. 

The  question  was  taken  and  passed  in  the  affirmative — 182  to 

127. 

Mr.  Ward  of  Boston  said  that,  upon  further  examination,  he  was 
confirmed  in  his  opinion  that  the  resolution  respecting  the  filling  of 
vacancies,  taking  place  in  the  recess  of  the  Legislature,  in  the  offices 
of  secretary  and  treasurer,  would  more  properly  be  referred  to  the 
select  committee  on  that  part  of  the  constitution  which  respects  the 
governor,  &c,  than  to  the  committee  on  the  part  of  the  constitution 
relating  to  the  secretary,  &c.  He  therefore  moved  that  this  last 
committee  be  discharged  from  the  further  consideration  of  the  sub- 
ject, that  it  may  be  referred  to  the  first  mentioned  committee. 

Mr.  Varnum  of  Dracut,  chairman  of  this  last  committee,  said  the 
committee  had  agreed  on  this  report,  which  he  held  in  his  hand, 
and  was  ready  to  present  it.  It  would  therefore  be  inconvenient  to 
have  this  subject  referred  to  them. 

The  question  was  then  taken  on  Mr.  Ward's  motion  and  lost. 

Mr.  Varnum,  from  the  committee  on  that  part  of  the  constitution 
relating  to  the  governor,  made  the  following  reports : 

Commonwealth  of  Massachusetts. 

In  Convention,  December  2d,  1820. 
The  committee  on  so  much  of  the  constitution  as  is  contained  in  the  first  section  , 
of  the  second  chapter  of  the  second  part,  and  who  were  instructed  to  take  into  con- 
sideration the  expediency  of  "  so  amending  the  tenth  article  of  the  second  chapter  of 
the  constitution,  as  that  in  future  the  captains  and  subalterns  of  the  militia  shall  be 
elected  by  the  written  votes  of  the  train-band  and  alarm  list  of  their  respective  com- 
panies without  regard  to  age,"  have  attended  that  service  and  ask  leave  to  report  the 
following  resolution : 

Commonwealth  of  Massachusetts. 

In  Convention,  December  2d,  1820. 
Resolved,  That  it  is  not  expedient  so  to  amend  the  tenth  article  of  the  second  chap- 
ter of  the  second  part  of  the  constitution,  as  that  the  captains  and  subalterns  of  the 
militia  shall  be  elected  by  the  written  votes  of  their  respective  companies,  without 
respect  to  age. 

Also  the  said  committee  who  are  directed  to  consider  the  expediency  and  propriety 
of  making  any  alterations  in  the  said  second  chapter  "  so  as  to  give  relief  to  such 
persons  as  have  religious  scruples  about  bearing  arms,"  have  had  the  subject  under 
consideration,  and  ask  leate  to  report  the  following  resolution : 
Commonwealth  of  Massachusetts. 

In  Convention,  December  2d,  1820. 
Resolved,  That  it  is  not  expedient  so  to  alter  or  amend  the  second  chapter  of  the 
constitution,  as  that  any  provision  shall  be  inserted  therein,  respecting  persons  who 
have  religious  scruples  about  bearing  arms. 


MASSACHUSETTS    CONVENTION.  153 

The  said  committee  have  also  had  under  consideration  the  expediency  "of  so 
amending  the  constitution,  as  that  in  future  the  captains  and  subalterns,  the  non-com- 
missioned officers  and  privates  of  the  respective  companies  of  militia  in  this  Common- 
wealth, shall  severally  be  exempted  from  the  payment  of  a  poll  tax  for  and  during 
the  time  they  shall  be  liable  to  do  and  perform  military  duty,"  and  ask  leave  to  report 
the  following  resolution : 

Commonwealth  of  Massachusetts. 

In  Convention,  December  2d,  1820. 

Resolved,  That  it  is  not  expedient  so  to  alter  or  amend  the  constitution,  as  that  in 
future  the  captains  and  subalterns,  and  the  non-commissioned  officers  and  privates  of 
the  respective  companies  of  militia  in  this  Commonwealth.,  shall  severally  be  exempt- 
ed from  the  payment  of  a  poll  tax,  for  and  during  the  time  that  they  shall  be  liable 
to  do  and  perform  military  duty.  J.  B.  VARNUM,  per  order. 

Commonwealth  of  Massachusetts. 

In  Convention,  December  2d,  1820. 
The  committee  to  whom  was  referred  so  much  of  the  constitution  of  this  Com- 
monwealth, as  is  contained  in  the  first  section  of  the.  second  chapter  of  the  second 
part,  and  respects  the  governor,  militia,  &c,  with  directions  to  take  into  considera- 
tion the  propriety  and  expediency  of  making  any,  and  if  any,  what  alterations  and 
amendments  therein,  have  attended  to  the  duty  assigned  them  and  ask  leave  to  report 
the  following  resolutions,  viz. : 

1.  Resolved,  That  it  is  expedient  to  alter  and  amend  the  second  article  of  the  said 
first  section,  by  striking  out  the  words  "  one  thousand  pounds,"  and  inserting  instead 
thereof  the  words  "  —  thousand  dollars  ;"  and  also  by  striking  out  the  words,  "  and 
unless  he  shall  declare  himself  to  be  of  the  Christian  religion." 

2.  That  it  is  expedient  to  alter  and  amend  the  third  article  of  the  said  first  section, 
by  striking  out  the  words  "  and  representatives  " — also  by  striking  out  the  word 
"April"  and  inserting  the  word  "November" — and  also  by  striking  out  the  words 
"  last  Wednesday  of  May,"  wherever  they  occur  in  the  said  third  article,  and  insert- 
ing the  words  "  first  Wednesday  of  January." 

3.  That  it  is  expedient  to  alter  and  amend  the  fourth  article  of  the  said  first 
section,  by  striking  out  the  word  "  five  "  and  inserting  "  four." 

4.  That  it  is  expedient  to  alter  and  amend  the  fifth  article  of  the  said  first 
section,  by  striking  out  the  words,  "  and  to  dissolve  the  same  on  the  day  next 
preceding  the  last  Wednesday  in  May " — and  also  the  words,  "  and  the  governor 
shall  dissolve  the  said  General  Court  on  the  day  next  preceding  the  last  Wednesday 
in  May." 

5.  That  it  is  expedient  to  alter  and  amend  the  seventh  article  of  the  said  first 
section,  by  striking  out  the  whole  of  the  first  paragraph  of  said  article,  and  substitut- 
ing instead  thereof,  a  paragraph  in  the  words  following,  viz.,  "  The  governor  of  this 
Commonwealth  for  the  time  being,  shall  be  the  commander  in  chief  of  all  the  mili- 
tary and  naval  forces  of  the  State,  except  when  in  the  actual  service  of  the  United 
States  ;  and  he  shall  have  all  the  powers  incident  to  the  said  office  of  captain  general 
and  commander  in  chief;  to  be  exercised  agreeably  to  the  rules  and  regulations  of 
the  constitution  and  the  laws  of  the  land,  and  not  otherwise." 

And  also  further  to  amend  the  same  article  by  striking  out  of  the  proviso,  and 
second  paragraph  thereof,  the  words,  "  by  virtue  of  any  power,  by  this  constitution 
granted,  or  hereafter  to  be  granted  to  him  by  the  Legislature." 

6.  That  it  is  expedient  to  alter  and  amend  the  ninth  article  of  the  said  first  sec- 
tion by  inserting  "  notaries  public  "  immediately  after  the  word  "  coroners." 

7.  That  it  is  expedient  to  alter  and  amend  the  tenth  article  of  the  said  first  sec- 
tion by  striking  out  of  the  first  paragraph  of  the  said  article  the  words,  "  of  the  train 
band  and  alarm  list." 

Also  by  striking  out  of  the  fifth  paragraph  of  the  said  article,  the  words  "  pursuant 
to  the  laws  of  the  Commonwealth  for  the  time  being,"  and  inserting  instead  thereof, 
the  words,  "  or  in  such  other  manner  as  may  be  provided  by  law." 

Also  by  striking  out  the  whole  of  the  sixth  paragraph  of  said  article,  which  relates 
to  the  appointment  of  officers  of  the  continental  army  ;  and 

Also  by  striking  out  the  letters  in  the  word  "  divisions  "  in  the  last  paragraph  of 
said  article,  and  by  inserting  into  the  same  the  word  "  divisions  "  immediately  after 
the  word  "  into." 

8.  That  it  is  expedient  to  alter  and  amend  the  twelfth  article  ot  said  first  section. 

20 


154  MASSACHUSETTS    CONVENTION. 

by  striking  out  the  whole  of  the  same,  and  substituting  an  article  instead  thereof  in 
the  words  following,  viz. : 

"  The  governor  may  require  at  any  time  from  all  executive  officers,  information  m 
writing,  as  to  any  matter  connected  with  the  duties  of  their  respective  offices." 

9.  That  it  is  expedient  to  alter  and  amend  the  thirteenth  article  of  the  said  first 
section  by  striking  out  of  the  concluding  part  of  the  first  paragraph  thereof,  the  words, 
"and  it  shall  be  among  the  first  acts  of  the  General  Court,  after  the  commencement 
of  this  constitution,  to  establish  such  salary  by  law  accordingly."  And  also  by  striking 
out  the  whole  of  the  last  paragraph  of  said  thirteenth  article,  which  is  in  these  words, 
viz. :  "  and  if  it  shall  be  found  that  any  of  the  salaries  aforesaid,  so  established,  are 
insufficient,  they  shall  from  time  to  time  be  enlarged,  as  the  General  Court  shall 

JU  WhErrespectfully  submitted.  J.  B.  VARNUM,  per  order. 

On  motion  of  Mr.  Varnum,  the  report  was  referred  to  a  committee 
of  the  whole,  and  made  the  order  of  the  day  for  Tuesday,  at  10 
o'clock,  and  ordered  to  be  printed  in  the  mean  time  for  the  use  of 
the  members. 

The  House  then  resolved  itself  into  a  committee  of  the  whole  on 
the  unfinished  business  of  yesterday,  Mr.  Varnum  in  the  chair. 

Mr.  Parker  of  Boston  said  he  had  observed  that  much  difficulty 
had  arisen  yesterday  from  the  indistinctness  with  which  propositions 
had  been  submitted  to  the  committee.  He  had  devoted  some  time, 
since  the  last  adjournment  of  the  Convention,  to  the  subject  before 
the  committee,  with  the  view  of  rendering  it  more  simple  and  easy 
to  be  understood.  The  committee  had  already  disposed  of  the  three 
first  resolutions  reported  by  the  select  committee,  and  two  remained 
to  be  considered.  One  of  these  two  proposed  that  only  one  coun- 
sellor should  be  chosen  from  one  county ;  the  other  related  to  the 
time  of  making  the  choice.  Mr.  P.  moved  to  amend  the  report  by 
striking  out  the  two  last  resolutions,  and  substituting  several  resolu- 
tions, which,  after  some  discussion  and  slight  amendment,  were 
adopted  as  follows,  viz. : 

Resolved,  That  it  ought  to  be  provided  in  the  constitution,  that  members  of  the 
council  shall  have  the  same  qualifications  as  members  of  the  senate. 

Resolved,  That  all  vacancies  happening  in  the  council  shall  be  supplied  in  the 
manner  provided  in  the  third  resolution  [of  the  report.] 

Resolved,  That  not  more  than  one  member  shall  be  chosen  from  any  one  senatorial 
district. 

Resolved,  That  in  case  any  member  chosen  shall  not  attend  seasonably  to  take  the 
oaths  and  subscribe  the  declarations,  which  may  be  required  by  the  constitution, 
before  the  Legislature,  at  the  session  thereof  at  which  he  shall  be  elected,  he  may 
take  and  subscribe  the  same  before  the  governor,  or  before  the  lieutenant  governor, 
and  any  one  or  more  of  the  council,  who  shall  have  been  previously  qualified. 

Mr.  Apthorp  wished  that  the  first  resolution,  which  had  been 
passed  over,  should  be  taken  up,  as  he  had  a  proposition  to  make, 
which  he  thought  would  remove  the  reason  for  its  postponement. 
He  then  offered  a  resolution,  which,  after  being  modified,  was  adopt- 
ed as  follows,  viz.  : 

•  Resolved,  That  it  is  expedient  .and  proper  that  the  constitution  shall  be  altered,  so 
that  the  qualifications  of  the  lieutenant  governor  shall  be  the  same  as  are  required  hi 
this  constitution  in  the  case  of  the  governor. 

Mr.  Baldwin  of  Boston  said  he  had  reason  to  think,  that  the 
third  resolution  of  the  report  was  not  well  understood,  when  the 


MASSACHUSETTS    CONVENTION.  155 

question  was  taken  upon  it  yesterday.     He   therefore  moved  a  re- 
consideration of  the  vote. 

(The  third  resolution  related  to  the  choosing  of  seven  counsel- 
lors, from  among  the  people  at  large,  by  the  joint  ballot  of  the  sena- 
tors and  representatives.) 

The  Chairman  asked  the  gentleman  if  he  had  voted  in  the  ma- 
jority when  the  question  was  taken.  Mr.  B.  answered  in  the  affirm- 
ative. 

Mr.  Parker  thought  the  gentleman  might  attain  his  object,  when 
the  resolution  should  come  before  the  Convention  upon  the  report 
of  the  committee  of  the  whole. 

Mr.  Blake  doubted  whether  the  whole  subject  could  be  acted 
upon  so  conveniently  in  the  Convention.  He  thought  they  would 
only  be  obliged  to  go  into  committee  again. 

Mr.  Baldwin  withdrew  his  motion. 

Mr.  Sturgis  of  Boston  moved  to  amend  the  report,  by  adding  a 
resolution,  purporting  that  the  counsellors  should  have  notice,  as 
soon  as  may  be,  of  their  election,  and  should  be  required  to  signify 
their  acceptance  within days  after  their  appointment;  other- 
wise, they  should  be  considered  as  having  declined,  and  the  Legis- 
lature should  proceed  to  choose  others  in  their  place. 

Mr.  Freeman  of  Sandwich  moved  to  amend,  so  that  the  counsel- 
lors should  be  obliged  to  signify  their  acceptance  within days 

after  they  shall  have  received  the  notice. 

Mr.  Sturgis  said  he  had  no  objection  to  vary  his  motion  so  as  to 

read,  "within days  after  the  notice  shall  have  been  sent ;  "   if 

that  would  meet  the  gentleman's  views. 

Mr.  Parker  said  the  gentleman's  (Mr.  F.)  amendment  would  be 
highly  inconvenient,  as  it  would  be  difficult  for  the  Legislature  to 
ascertain,  whether  the  counsellors  had  received  the  notice,  or  not. 
He  would  fill  the  blank  so  as  to  allow  ample  time  for  the  notice  to 
be  given. 

Mr.  Freeman  said  it  had  happened  on  one  occasion  that  all  the 
senators  had  not  been  duly  notified  of  their  election,  and  the  same 
thing  might  happen  to  the  counsellors.  All  he  wished  was,  that 
they  should  not  lose  their  seats  through  accident,  or  the  inatten- 
tion of  others.  Mr.  Apthorp  proposed  that  the  word  election  should 
be  substituted  for  appointment. 

Mr.  Sturgis  said  he  wished  to  settle  principles ;  he  did  not  care 
a  straw  about  the  words.  His  motion  was  not  to  be  incorporated 
into  the  constitution  verbatim. 

The  question  was  taken  on  Mr.  Freeman's  amendment  and 
lost. 

Mr.  Starkweather  of  Worthington  wished  the  gentleman  from 
Boston  would  withdraw  his  motion.  He  thought  it  unnecessary. 
Delays  of  this  kind,  on  the  part  of  gentlemen  chosen  counsellors, 
were  not  apt  to  take  place.  The  Legislature  ought  not  to  act  till 
they  ascertain  that  a  gentleman  has  received  notice;  and  there 
might  be  circumstances  out  of  his  control,  to  prevent  his  answer 


156  MASSACHUSETTS    CONVENTION. 

being  returned.  Suppose  he  puts  his  answer  in  the  post  office  and 
there  is  a  failure  of  the  mail ;  he  comes  to  Boston  to  be  qualified 
and  finds  another  elected  in  his  room.  He  has  the  mortification  of 
losing  both  his  journey  and  his  appointment.  Suppose  a  counsel- 
lor is  chosen  from  a  distant  part  of  the  State  two  days  before  the 
Legislature  rises ;  here  there  is  no  time  to  give  notice  and  receive 
his  answer,  and  if  he  should  decline,  there  must  be  a  vacancy  in 
the  council  through  the  rest  of  the  year,  if  the  Legislature  should 
have  but  one  session. 

Mr.  Prince   of  Boston  hoped  the  motion  would  not  be  with- 
drawn ;  he  had  no  objection  to  its  lying  on  the  table  till  it  shall  be 
determined  how  they  are  to  be  chosen. 
Mr.  Sturgis  withdrew  his  motion. 

Mr.  Sibley  of  Sutton  said  the  gentleman  from  Boston  (Mr. 
Baldwin)  had  stated  that  he  voted  in  the  majority  on  a  question 
taken  yesterday,  concerning  the  mode  of  electing  counsellors,  and 
had  made  a  motion  to  reconsider  that  vote.  He  regretted  the  gen- 
tleman had  thought  proper  to  withdraw  his  motion.  He  thought  it 
important  that  there  should  be  a  reconsideration  of  the  subject,  and 
he  would  therefore  renew  the  motion. 

Mr.  Bond  of  Boston  begged  leave  to  inquire  whether  the  gentle- 
man had  voted  in  the  majority,  when  the  question  was  taken  ;  he 
was  informed  by  gentlemen  that  the  case  was  otherwise. 

•Mr.  Sibley  said  he  hardly  remembered,  or  something  like  it,  and 
sat  down.     (A  laugh.) 

Mr.  Webster  moved  that  the  committee  rise. 
Mr.  Baldwin  said  he  would  renew  his  motion. 
Mr.  Webster  rose  to  a  point  of  order.     The  motion  was  to  rise. 
Mr.  Bliss  asked  if  this  question  was  open  to  debate. 
The  Chairman  answered  that  he  apprehended  it  was  not. 
The  question  was  taken  on  the  motion  to  rise,  and  decided  in  the 
negative — 218  to  127. 

Mr.  Baldwin  made  a  few  remarks,  and  concluded  by  renewing 
his  motion  to  reconsider. 

Mr.  Bliss  argued  in  favor  of  the  reconsideration.  The  subject 
had  not  been  well  understood  by  a  very  considerable  number  of 
gentlemen,  and  he  apprehended,  that  if  any  motion  were  made  in 
Convention,  proposing  a  different  mode  of  choosing  counsellors,  it 
would  be  necessary  for  the  Convention  to  resolve  itself  again  into 
a  committee  of  the  whole. 

Mr.  Webster  said  if  this  question  was  reconsidered,  they  might 
with  equal  propriety  reconsider  any  question.  He  was  not  perfectly 
satisfied  in  his  own  mind  what  mode  of  choosing  counsellors  would 
be  the  best ;  he  was  willing  to  let  the  constitution  remain  without 
alteration  in  this  respect.  The  question  on  this  resolution  had  been 
taken  after  a  long  discussion,  and  it  would  be  put  again  in  Conven- 
tion, where  gentlemen  might  adopt  the  vote  of  the  committee  or 
reject  it.  This  was  a  fair  course,  and  the  proper  one  to  be  pur- 
sued. 


MASSACHUSETTS    CONVENTION.  157 

Mr.  Blake  objected  to  the  course  proposed  by  the  gentleman 
from  Boston.  He  said  if  the  Convention  should  not  agree  with 
the  committee,  they  would  have  to  change  from  convention  to 
committee  of  the  whole,  and  back  again  from  committee  to  con- 
vention. He  thought  the  question  was  one  of  vital  consequence, 
and  that  more  time  would  be  properly  spent  on  it  in  committee  of 
the  whole. 

Mr.  Leland  said  he  was  in  favor  of  the  counsellors  being  elected 
by  the  people,-  but  he  thought  the  proposition  of  the  gentleman 
from  Boston,  (Mr.  Webster)  a  fair  one. 

Mr.  Sibley  was  not  satisfied  that  they  could  act  as  well  on  the 
subject  in  Convention,  as  they  could  in  committee  of  the  whole. 
He  said  if  they  rejected  in  Convention  the  vote  of  the  committee, 
the  constitution  would  stand  as  it  now  is,  and  this  was  not  what 
the  people  wanted.  He  wished  there  might  be  a  reconsideration. 
Mr.  Slocum  of  Dartmouth  said  there  was  a  full  House  now,  and 
if  they  put  off  the  question  to  the  Convention,  it  would  not  be  so 
full  probably.  Many  gentlemen  were  persuaded,  that  they  were 
curtailing  the  rights  of  the  people,  in  adopting  this  mode  of  choos- 
ing counsellors. 

Mr.  Martin  of  Marblehead  said  they  were  depriving  the  people 
of  their  rights.  The  people  indeed,  in  the  choice  of  counsellors, 
would  have  a  side-wind  voice  through  their  representatives,  but 
they  ought  to  have  more.  This  question  was  decided  by  a  major- 
ity of  fifty  only,  and  a  hundred  members  were  absent,  or  did  not 
vote,  which  they  should  have  done  according  to  the  rules  of  the 
Convention.     He  hoped  the  question  would  be  reconsidered. 

The  question  was  taken  and  carried  for  a  reconsideration — 224 
to  134. 

The  question  before  the  committee  was  then  stated  to  be  upon 
the  third  resolution,  in  the  same  form  as  if  it  had  not  been  adopted. 
Mr.  Morton  moved   to  strike  out  the  resolution  reported  by  the 
select  committee,  and  to  substitute  for  it  a  resolution,  purporting 
that  the  constitution  ought  to  be  so  amended  that  counsellors 

should  be  annually  chosen  by  the  people,  in  such  convenient  dis- 
tricts as  shall  be  formed  by  the  Legislature  at  their  next  session, 
having  regard  to  the  number  of  inhabitants,  and  as  equal  as  may  be 
without  dividing  towns,  each  district  to  choose  one  counsellor,  who 
shall  have  the  same  qualifications  as  are  required  for  senators,  and 
if  in  any  district  there  shall  be  no  choice,  the  vacancy  to  be  filled  by 
joint  ballot  of  both  houses  of  the  Legislature ;  the  choice  to  be 
confined  to  the  two  persons  in  each  district  who  had  the  highest 
number  of  votes  of  the  people — the  districts  thus  formed  to  remain 
until  a  new  valuation  shall  be  taken.  He  made  this  motion  be- 
cause he  thought  it  was  the  original  intention  of  the  constitution 
that  the  people  should  have  a  voice  in  the  choice  of  counsellors. 

Mr.  Parker,  (President)  objected  to  the  motion,  that  it  proposed 
a  substitute  for  all  the  resolutions  reported  by  the  select  committee, 
instead  of  one   only  which  it   had  been  voted  to  reconsider.     He 


158  MASSACHUSETTS    CONVENTION. 

suggested  that  the  mover  should  confine  his  proposition  to  a  substi- 
tute for  the  resolution  voted  to  be  reconsidered. 

Mr.  Morton  had  no  objection  to  taking  the  abstract  proposition 
that  the  counsellors  shall  be  chosen  by  districts. 

Mr.-  Blake  moved  that  the  committee  rise  and  report  progress 
with  a  view  that  the  resolution  offered  might  be  printed  and  as- 
signed for  consideration  on  Tuesday. 

Mr.  Bliss  wished  that  before  the  committee  rose  the  resolution 
might  be  amended  so  that  the  districts  should  be  formed  in  the 
same  manner  with  the  senatorial  districts. 

Mr.  Morton  had  no  objection. 

Mr.  Parker.  This  would  make  ten  counsellors  necessary,  there 
being  ten  senatorial  districts. 

Mr.  Bliss  meant  only  that  they  should  be  formed  in  the  same 
manner,  not  of  the  same  extent. 

Mr.  Sturgis  asked  if  the  fifth  resolution  had  not  passed. 

Chairman.     It  has  been  struck  out. 

Mr.  Dana  inquired  what  was  the  question  before  the  committee. 

Chairman.     Whether  the  committee  shall  rise. 

Mr.  Dana  was  against  rising.  He  wished  first  to  obtain  from 
gentlemen  a  demonstration  of  their  views.  He  was  proceeding  to 
offer  further  remarks,  when 

Mr.  Blake  asked  if  the  gentleman  was  in  order. 

Chairman.  It  is  not  in  order  to  debate  the  proposition  before 
the  committee.  Mr.  Dana  thought  it  was  in  order  to  give  reasons 
against  rising. 

Chairman.  Observations  may  be  made  regarding  the  expediency 
of  rising,  but  the  question  previously  before  the  House  should  not 
be  debated. 

Mr.  Blake  stated  as  a  reason  for  rising  that  a  hundred  and  forty 
members  who  were  present  when  the  resolution  was  adopted,  were 
now  absent. 

Mr.  Dana  gave  as  a  reason  for  not  rising  that  we  might  have 
the  benefit  of  the  observations  of  the  gentlemen  who  remain. 

The  question  that  the  committee  now  rise  was  taken  and  decided 
in  the  negative,  158  to  171. 

Mr.  Morton  then  offered  his  motion,  modified  as  follows : 

Resolved,  That  the  constitution  be  so  altered  as  that  the  counsellors  shall  be  chosen 

by  the  people.  ..,•,.         ■■•     • 

Resolved,  That  the  Commonwealth  for  this  purpose  be  divided  into   districts. 
Resolved,  That  said  districts  be  formed  by  the  Legislature  on  the  same  principles 

as  shall  be  adopted  for  the  choice  of  senators. 

The  first  resolution  being  stated  as  under  consideration,  viz.,  "  that 
the  constitution  be  so  altered  as  that  the  counsellors  shall  be  chosen 
by  the  people," 

Mr.  Webster.     The  counsellors  are  now  chosen  by  the  people. 

Mr.  Blake  was  of  the  same  opinion.  Senators  and  counsellors 
are  chosen  by  the  people  on  the  first  Monday  in  April,  and  when  they 
came  together,  and  the  counsellors  are  designated  by  the  members  of 


MASSACHUSETTS    CONVENTION.  159 

the  two  branches  in  Convention,  the  choice  is  consummated.  The 
choice  is  now  by  the  people,  and  the  Legislature  only  designate  in 
which  capacity  each  person  elected  shall  serve,  whether  as  coun- 
sellor or  as  senator. 

Mr.  Bliss  considered  that  the  striking  out  of  the  third  resolution 
was  an  important  part  of  the  proposition.  The  reasons  against 
,  that  resolution  were  not  all  given  yesterday.  He  was  of  opinion 
that  the  executive  should  be  a  co-ordinate  branch  of  the  govern- 
ment proceeding  from  the  people,  and  independent  of  the  Legisla- 
ture. He  supposed  the  case  that  the  Legislature  should  wish  to 
turn  out  the  supreme  judicial  court.  It  would  be  in  the  power  of 
the  Legislature  to  select  a  council  for  the  express  purpose. 

Mr.  Bond  of  Boston  thought  the  committee  were  in  the  same 
difficulty  that  they  were  in  at  an  earlier  part  of  the  morning,  and 
that  they  might  be  relieved  from  it  in  the  same  mode,  if  the  gentle- 
man from  Dorchester  would  withdraw  his  motion,  and  substitute 
one  merely  to  strike  out  the  third  resolution. 

Mr.  Stone  of  Boxborough  said  he  considered  this  a  very  impor- 
tant question,  and  he  should  call  for  the  yeas  and  nays  upon  it. 

The  Chairman  said  that  in  committee  of  the  whole,  the  yeas  and 
nays  could  not  be  taken. 

Mr.  Blake  moved  to  divide  the  resolution. 

Mr.  Morton  said  it  had  been  decided  not  to  be  in  order  to  divide 
so  as  to  strike  out  merely,  without  substituting.  He  wished  to  de- 
termine the  abstract  question,  and  this  was  done  by  voting  to  strike 
out  the  resolution  and  to  give  the  choice  to  the  people. 

Mr.  Blake  said  that  half  an  hour  had  elapsed  since  he  moved  that 
the  committee  should  rise,  and  he  felt  now  justified  in  renewing  the 
motion.  This  was  an  important  question.  None  more  so  would 
come  up.  It  was  a  question  whether  we  should  take  away  from  the 
people  an  important  power.  No  one  of  the  other  reports  involves  so 
important  a  principle  of  the  constitution.  Many  gentlemen  were 
now  gone  ;  it  was  not  a  proper  time  for  acting  upon  such  a  subject. 
This  resolution  was  passed  yesterday  by  a  majority  of  not  more 
than  fifty  votes.  He  hoped  that  on  all  subjects  there  would  be 
something  like  unanimity.  He  should  not  be  surprised  if  on  every 
important  question,  if  it  were  thoroughly  discussed,  the  House 
should  come  to  nearly,  an  unanimous  vote. 

Mr.  Webster  called  the  gentleman  to  order;  the  chairman  had  re- 
peatedly decided  that  it  was  not  in  order  to  enter  into  debate  on  a 
motion  to  rise. 

Mr.  Blake  then  moved  that  the  committee  rise,  report  progress 
and  ask  leave  to  sit  again. 

The  motion  was  carried  and  leave  was  granted. 

Mr.  Story  moved  that  when  the  House  adjourned,  it  should  ad- 
journ to  Monday  eleven  o'clock.     Negatived,  144  to  176. 

The  House  adjourned. 


160  MASSACHUSETTS    CONVENTION. 

Monday,  December  4. 

The  House  met  at  a  quarter  past  10  o'clock,  and  the  journal  of 
Saturday's  proceeding  was  read. 

Mr.  Holmes  of  Rochester  said  that  on  Saturday  the  Convention 
had  ordered  that  from  this  day  they  would  hold  two  sessions  a  day. 
He  voted  in  favor  of  that  resolution,  but  on  consideration  he  thought 
it  would  promote  the  progress  of  the  business  better,  if  they  would 
reconsider  that  vote,  and  determine  to  adjourn  to  nine  o'clock  in  the* 
morning,  and  sit  each  day  till  half  past  two.  He  therefore  moved 
that  the  Convention  reconsider  the  vote  for  holding  two  sessions  per 
day. 

Mr.  Prescott  said  that  the  committee  on  the  third  resolution  had 
not  finished  their  business — that  they  had  held  a  session  every  day, 
and  often  to  a  late  hour  at  night,  and  that  they  were  now  adjourned 
to  meet  this  afternoon.  That  committee  consisted  of  twenty-nine 
members,  and  it  would  be  extremely  inconvenient  for  them  to  finish 
their  business  if  the  House  sat  in  the  afternoon. 

Mr.  GIuincy  and  Mr.  Blake  stated  some  reasons  for  reconsidera- 
tion, and  against  two  sessions. 

Mr.  Varnum  thought  that  nothing  would  be  gained  by  holding 
afternoon  sessions.  He  should  be  willing  to  begin  business  at  nine 
o'clock  in  the  morning,  as  soon  as  all  the  business  of  the  committees 
was  completed ;  but  he  thought  it  could  not  be  done  at  present. 
The  motion  to  reconsider  was  then  taken  and  decided  in  the  affirma- 
tive—182  to  42. 

On  motion  of  Mr.  Blake,  it  was  ordered  that  the  unfinished 
business  of  Saturday,  in  committee  of  the  whole,  be  assigned  to  to- 
morrow at  ten  o'clock. 

On  motion  of  Mr.  Webster,  the  House  went  into  committee  of 
the  whole  on  the  report  of  the  select  committee  upon  that  part  of 
the  constitution  which  relates  to  oaths  and  subscriptions  and  other 
subjects,  Mr.  Dana  of  Groton  in  the  chair. 

The  report  was  then  read,  and  the  first  resolution  was  first  taken 
into  consideration.  This  resolution  recommends  to  substitute  for  all 
oaths,  declarations  and  subscriptions  now  required,  a  short  oath  of 
allegiance,  and  an  oath  of  office,  with  a  provision  that  Quakers,  in- 
stead of  sic  earing,  may  affirm. 

Mr.  Webster.  It  is  obvious  that  the  principal  alteration,  proposed 
by  the  first  resolution,  is  the  omission  of  the  declaration  of  belief  in 
the  Christian  religion,  as  a  qualification  for  office,  in  the  cases  of  the 
governor,  lieutenant  governor,  counsellors  and  members  of  the  Leg- 
islature. I  shall  content  myself  on  this  occasion  with  stating,  short- 
ly and  generally,  the  sentiments  of  the  select  committee  as  I  under- 
stand them  on  the  subject  of  this  resolution.  Two  questions  naturally 
present  themselves.  In  the  first  place  ;  have  the  people  a  right,  if 
in  their  judgment  the  security  of  their  government  and  its  due  ad- 
ministration demand  it,  to  require  a  declaration  of  belief  in  the  Chris- 
tian religion  as  a  qualification  or  condition  of  office  ?  On  this  ques- 
tion, a  majority  of  the  committee  held  a  decided  opinion.     They 


MASSACHUSETTS    CONVENTION.  161 

thought  the  people  had  such  a  right.  By  -the  fundamental  principle 
of  popular  and  elective  governments,  all  office  is  in  the  free  gift  of 
the  people.  They  may  grant,  or  they  may  withhold  it  at  pleasure  ; 
and  if  it  be  for  them,  and  them  only,  to  decide  whether  they  will 
grant  office,  it  is  for  them  to  decide,  also,  on  what  terms,  and  with 
what  conditions,  they  will  grant*  it.  Nothing  is  more  unfounded 
than  the  notion  that  any  man  has  a  right  to  an  office.  This 
must  depend  on  the  choice  of  others,  and  consequently  upon  the 
opinions  of  others,  in  relation  to  his  fitness  and  qualification  for  of- 
fice. No  man  can  be  said  to  have  a  right  to  that,  which  others  may 
withhold  from  him,  at  pleasure.  There  are  certain  rights,  no  doubt, 
which  the  whole  people — or  the  government  as  representing  the 
whole  people — owe  to  each  individual,  in  return  for  that  obedience, 
and  personal  service,  and  proportionate  contributions  to  the  public 
burdens  which  each  individual  owes  to  the  government.  These 
rights  are  stated  with  sufficient  accuracy  in  the  tenth  article  of  the 
bill  of  rights  in  this  constitution  :  "  Each  individual  in  society  has 
a  right  to  be  protected  by  it,  in  the  enjoyment  of  his  life,  liberty,  and 
property,  according  to  the  standing  laws."  Here  is  no  right  of  office 
enumerated  ;  no  right  of  governing  others,  or  of  bearing  rule  in  the 
State.  All  bestowment  of  office  remaining  in  the  discretion  of  the 
people,  they  have,  of  course,  a  right  to  regulate  it,  by  any  rules  which 
they  may  deem  expedient.  Hence  the  people,  by  their  constitution, 
prescribe  certain  qualifications  for  office,  respecting  age,  property, 
residence,  &c.  But  if  office,  merely  as  such,  were  a  right,  which 
each  individual  under  the  social  compact  was  entitled  to  claim,  all 
these  qualifications  would  be  indefensible.  The  acknowledged 
rights  are  not  subject,  and  ought  not  to  be  subject  to  any  such  limi- 
tation. The  right  of  being  protected  in  life,  liberty,  and  estate,  is 
due  to  all,  and  cannot  be  justly  denied  to  any,  whatever  be  their 
age,  property,  or  residence  in  the  State.  These  qualifications,  then, 
can  only  be  made  requisite  as  qualifications  for  office,  on  the  ground 
that  office  is  not  what  any  man  can  demand  as  matter  of  right,  but 
rests  in  the  confidence  and  good  will  of  those  who  are  to  bestow  it. 
In  short,  it  seems  to  me  too  plain  to  be  questioned,  that  the  right  of 
office  is  a  matter  of  discretion,  and  option,  and  can  never  be  claimed 
by  any  man,  on  the  ground  of  obligation.  It  would  seem  to  follow, 
then,  that  those  who  confer  office  may  annex  any  such  conditions 
to  it  as  they  think  proper.  If  they  prefer  one  man  to  another,  they 
may  act  on  that  preference.  If  they  regard  certain  personal  quali- 
fications, they  may  act  accordingly,  and  ground  of  complaint  is 
given  to  nobody.  Between  two  candidates,  otherwise  equally  qual- 
ified, the  people  at  an  election  may  decide  in  favor  of  one  because 
he  is  a  Christian,  and  against  the  other  because  he  is  not.  They 
may  repeat  this  preference  at  the  next  election,  on  the  same  ground, 
and  may  continue  it,  from  year  to  year.  Now,  if  the  people  may, 
without  injustice,  act  upon  this  preference  and  from  a  sole  regard  to 
this  qualification,  and  refuse  in  any  instance  to  depart  from  it,  they 
have  an  equally  clear  right  to  prescribe  this  qualification  beforehand 
21 


162  MASSACHUSETTS    CONVENTION. 

as  a  rule  for  their  future  government.  •  If  they  may  do  it,  they  may 
agree  to  do  it.     If  they  deem  it  necessary,  they  may  so  say,  before- 
hand.    If  the  public  will  may  require  this  qualification,  at  every  elec- 
tion, as  it  occurs,  the  public  will  may  declare  itself  beforehand  ;  and 
make  such  qualification  a  standing  requisite.     That  cannot  be  an  un- 
just rule,  the  compliance  with  whick,  in  every  case,  would  be  right. 
This  qualification  has  nothing  to  do  with  any  man's  conscience.    If  he 
dislike  the  condition,  he  may  decline  the  office  ;  in  like   manner  as 
if  he  dislike  the  salary,  the  rank,  or  anything  else  which  the  law 
attaches  to  it.     However  clear  the  right  be,  (and  I  can  hardly  sup- 
pose any  gentleman  will  dispute  it)  the  expediency  of  retaining  the 
declaration  is  a  more  difficult  question.     It  is  said  not  to  be  neces- 
sary, because  in  this  Commonwealth,  ninety-nine  out  of  every  hun- 
dred of  the  inhabitants  profess  to  -believe  in  the  Christian  religion. 
It  is  sufficiently  certain,  therefore,  that  persons  of  this  description, 
and  none  others,  will  ordinarily  be  chosen  to  places  of  public  trust. 
There  is  as  much  security,  it  is  said,  on  this  subject,  as  the  neces- 
sity of  the  case  requires.     And  as  there  is  a  sort  of  opprobrium — a 
marking  out  for  observation  and  censorious  remark,  a  single  individ- 
ual, or  a  very  few  individuals,  who  may  not  be  able  to  make  the 
declaration,  it  is  an  act,  if  not  of  injustice,  yet  of  unkindness,  and  of 
unnecessary  rigor  to  call  on  feuch  individuals  to  make  the   declara- 
tion.    There  is,  also,  another  class  of  objections  which  has  been 
stated.     It  has  been  said  that  there  are  many  very  devout  and  serious 
persons — persons  who  esteem  the  Christian  religion  to  be  above  all 
price — to   whom,  nevertheless,  the  terms  of  this  declaration  seem 
somewhat  too  strong  and  intense.     They  seem,  to  these  persons,  to 
require  the  declaration  of  thai  faith  which  is  deemed  essential  to  per- 
sonal salvation  ;  and  therefore  not  at  all  fit  to  be  adopted  by  those 
who  profess  a  belief  in  Christianity,  merely  in  a  more  popular  and 
general  sense.     It  certainly  appears  to  me  that  this  is  a  mistaken  in- 
terpretation of  the  terms ;  that  they  imply  only  a  general  assent  to 
the  truth  of  the  Christian  revelation,  and,  at  most,  to  the  supernatu- 
ral occurrences  which  establish  its  authenticity.     There  may,  how- 
ever, and  there  appears  to  be,  conscience  in  this  objection  ;  and  all 
conscience  ought  to  be  respected.     I  was  not  aware,  before  I  attended 
the  discussions  in  the  committee,  of  the  extent  to  which  this  objec- 
tion prevailed.     There  is  one  other  consideration  to  which  I  will 
allude  although  it  was  not  urged  in  committee.     It  is  this.     This 
qualification  is  made  applicable  only  to  the  executive  and  the  mem- 
bers of  the  Legislature.     It  would  not  be  easy,  perhaps,  to  say  why 
it  should  not  be  extended  to  the  judiciary,  if  it  were  thought  neces- 
sary for  any  office.     There  can  be  no  office,  in  which  the  sense  of 
religious  responsibility  is  more  necessary  than  in  that  of  a  judge  ; 
especially  of  those  judges  who  pass,  in  the  last  resort,  on  the  lives, 
liberty  and  property  of  every  man.     There  may  be,  among  legisla- 
tors, strong  passions,  and  bad  passions.     There  may  be  party  heats 
and  personal  bitterness.     But  legislation  is,  in  its  nature,   general. 
Laws  usually  affect  the  whole  society,  and,  if  mischievous  or  un- 


MASSACHUSETTS    CONVENTION.  163 

just,  the  whole  society  is  alarmed,  and  seeks  their  repeal.  The  ju- 
diciary power,  on  the  other  hand,  acts  directly  on  individuals.  The 
injured  may  suffer,  without  sympathy,  or  the  hope  of  redress.  The 
last  hope  of  the  innocent,  under  accusation,  and  in  distress,  is  in  the 
integrity  of  his  judges.  If  this  fail,  all  fails  ;  and  there  is  no  remedy 
on  this  side  the  bar  of  heaven.  Of  all  places,  therefore,  there  is  none, 
which  so  imperatively  demands  that  he  who  occupies  it  should  be 
under  the  fear  of  God,  and  above  all  other  fear,  as  the  situation  of  a 
judge.  For  these  reasons,  perhaps,  it  might  be  thought  that  the 
constitution  has  not  gone  far  enough,  if  the  provision  already  in  it 
were  deemed  necessary  to  the  public  security.  I  believe  I  have 
stated  the  substance  of  the  reasons  which  appeared  to  have  weight 
with  the  committee.  For  my  own  part,  finding  this  declaration  in 
the  constitution,  and  hearing  of  no  practical  evil  resulting  from  it, 
I  should  have  been  willing  to  retain  it  ;  unless  considerable  objec- 
tion had  been  expressed  to  it.  If  others  were  satisfied  with  it,  I 
should  be.  I  do  not  consider  it,  however,  essential  to  retain  it,  as  there 
is  another  part  of  the  constitution  which  recognizes  in  the  fullest  man- 
ner the  benefits  which  civil  society  derives  from  those  Christian  insti- 
tions  which  cherish  piety,  morality  and  religion.  I  am  conscious, 
that  we  should  not  strike  out  of  the  constitution  all  recognition  of 
the  Christian  religion.  I  am  desirous,  in  so  solemn  a  transaction  as  the 
establishment  of  a  constitution,  that  we  should  keep  in  it  an  expres- 
sion of  our  respect  and  attachment  to  Christianity  ; — not,  indeed,  to 
any  of  its  peculiar  forms,  but  to  its  general  principles. 

Mr.  Prince  of  Boston  observed  that  as  he  was  unused  to  public 
speaking,  and  engaged  in  pursuits  of  life  which  had  in  a  great  meas- 
ure excluded  him  for  participating  in  the  affairs  of  legislation,  he 
trusted  in  the  candor  and  kindness  of  the  House,  if,  in  the  discharge 
of  what  he  considered  an  imperative  duty,  he  should  not  be  fortunate 
either  in  the  previous  arrangement  of  his  ideas,  or  afterward  in  the 
manner  of  expressing  them ;  and,  that  the  few  observations  which 
he  should  venture  to  make,  would  not  from  their  want  of  merit  be 
severely  censured  by  those  who  could  not  approve  them.  Indeed, 
a  consciousness  of  his  inability,  would  induce  him  rather  to  state 
general  axioms  than  to  attempt  to  discuss  and  expatiate  at  large 
upon  the  subject  under  consideration.  There  are,  said  Mr.  P.,  two 
distinct  rights  belonging  to  man — unalienable  and  natural — 
among  those  of  the  first  class  are  the  rights  of  conscience  in  all  mat- 
ters of  religion.  Now  I  hold  that  religion  is  a  matter  exclusively 
between  God  and  the  individual ;  and  "the  manner  of  discharging 
it,  can  be  directed  only  by  reason  or  conviction ;  and  thus,  I  repeat 
it,  this  right  is  in  its  nature  an  unalienable  right,  because  it  depends 
on  the  evidence  as  it  strikes  his  mind ;  and  consequently  the  result 
is  what  is  his  duty  towards  his  Creator.'''1  And  therefore,  as  man 
owes  supreme  allegiance  to  God,  as  the  Creator,  and  as  the  undivided 
governor  of  the  universe,  he  cannot  absolve  himself,  nor  can  others 
absolve  him  from  this  supreme  allegiance  ;  and  hence,  on  entering 
into  a  social  compact,  the  rights  he  gives  up,  and  the  powers  he 


164  MASSACHUSETTS    CONVENTION. 

delegates  must  be  tributary  to,  and  in  subordination  to  this  high  and 
first  allegiance — and  among  the  first  enumeration  of  rights  and  du- 
ties in  the  present  constitution  of  the  Commonwealth,  this  principle 
is  recognized  :    "It  is  the   duty  and  the  right  of  all  men  (says  the 
constitution)  to  worship  the  Supreme  Being,  the  great  Creator  and 
preserver  of  the  universe,   and  none  shall  be  molested  or  restrained 
for  worshipping  God  in  the  manner  and  season  most  agreeable  to 
the  dictates  of  his  own  conscience,  nor  for  his  religious  professions 
or  sentiments."     This  is  reasonable,  wise  and  just.    In  forming  or  re- 
vising the  social  compact,  let  us  then  take  heed,  that  we  do  not  in- 
sert or  retain  any  principle  which  by  possible  construction  may  in- 
terfere with,  or  abridge  such  sacred,  such  inestimable  rights  by  an 
inquiry  into  opinions  for  which  man  is  only  accountable  to  his  God. 
Social  duties  are    between  man   and   man.     Religious  duties  are 
between  God   and    the   individual.     While    we    are    solicitous  to 
"  render  unto  Caesar  the  things  that  are  Caesar's  " — take  heed,  I  be- 
seech you,  that  "  you  leave  unto  God,  the  things  that  are  God's." 
Nor  will    the  argument  hold  good  that  because  during  the  forty 
years  the  test  has  been  engrafted  into  and  been  in  force  under  the 
present  constitution,  no  extensive  evils  have  presented  themselves, 
and  therefore  it  is  inexpedient  to  expunge  it  from  the  constitution, 
lest  it  might  be  construed  as  an  indirect  abandonment  of  the  cause 
of  Christianity.     On  revising  the  constitution,  every   unnecessary 
point,  even  the  most  trivial,  ought  to  be  stricken  out,  and  every 
possible    evil    guarded   against.     The    American    revolution   fully 
recognizes  this  principle  ; — it  was  not  the  pressure  of  evils  actually 
existing  which  induced  the  patriots  of  the  revolution  to  resist  the 
encroachments  of  Great  Britain,  but  it  was  a  dread  of  the  conse- 
quences which  they  believed  would  result  from  submitting  to  the 
doctrines  advanced  by  the  mother  country — hence,  I  repeat  it,  it  is 
not  from  the  multiplicity  of  cases  which  have  occurred,  whereby 
men  of  sterling  integrity,  pure  morals  and  great  strength  of  intellect 
may  have  been  precluded  from  participating  either  in  the  advantages 
of  office,  or  assisting  in  the  public  councils,  but  it  is  that  by  con- 
tinuing this  principle  in  the  constitution  you  may  preclude  them. 
I  add  moreover,  that  though  many  positive  instances  are  not  known, 
yet  there  may  have  been  many  negative  ones  from  the  religious 
qualification  alluded  to ;  if  I  have  been  rightly  informed  this  quali- 
fication has  not  only  had  a  tendency  to  prevent  moral  and  intelli- 
gent men  from  office,  who  may  or  may  not  have  been  Christians, 
but  sir,   ere  the  ink  which  was  used  to  record  the  qualification  in 
the  instrument  was  dry,  one  of  our  most  distinguished  citizens,  and 
a  most  enlightened  and  prominent  patriot,  (I  mean  Mr.  Hawley)  a 
professing  member  of  a  Christian  church,  disdained  to  hold  a  seat  at 
the  senate  board  on  the  condition  that  he   should  submit  to  make  a 
public  acknowledgment  of  his  religious  sentiments,   other  than  at 
the  altar  of  the  Most  High  God,  although  his  zeal  in  support  of  the 
cause  of  Christianity    almost   bordered  on    an   undue    enthusiasm. 
How  many  Christians  actuated  by  similar  considerations  have  with- 


MASSACHUSETTS    CONVENTION.  165 

held  their  useful  talents  in  favor  of  the  Commonwealth  I  pretend 
not  to  state,  but  I  should  think  even  this  one  sufficient  to  erase  this 
qualification,   "  for,  if  all  men  are  free,  equal  and   independent   by- 
nature,  and  the  right  of  conscience  is  unalienable,  then,  on  entering 
into  the    social   compact,  every  man  has  a  right  to  enter  on  equal 
terms  ;  but,  if  the  consciences  of  men  are  in  any  wise  shackled  by 
for' ins  or  qualifications,  this  would  not  be  the  case."     I  submit  then 
the    following    positions,  first,    admitting    the  right,  (which,  how- 
ever, I  do  not)  of  the  citizens  when  forming  a  social   compact  to 
prescribe  such  terms  as  a  majority  may  deem  expedient  and  proper, 
yet  I  hold  it  to  be  unjust  to  introduce  a  principle  into  the  compact 
which,  while  it  provides  that  the  individual  shall  afford  his  personal 
aid,  and  risk  his  life  for  the  common  defence  and  yield  up  all  his 
property  (if  need  be)  for  the  maintenance  of  the  government  and  its 
laws,   yet  virtually  precludes  him  from  participating  in  any  of  the 
advantages  resulting  from  offices,  or  from  any  share  in  the  adminis- 
tration of  the   government,  because   he   differs  on   a  subject  with 
which  society  has  but  a  doubtful   right  to   interfere ;   although  in 
point  of  morality  and  strength  of  intellect  he    shines  as    "a  star  of 
the  first  magnitude."     Secondly — I   hold  that  this  act  of  injustice 
toward  the  individual  is  neither  politic  nor  expedient  ;  first,  because 
as  before  observed,  it  may  deprive   society  of  talent   and  moral  ex- 
cellence, which  should  always  be  secured    and  cherished  as  one  of 
the  best  means  of  preserving  the  prosperity  of  the  Commonwealth ; 
and  secondly,  while  it  may  thus  exclude  men  possessing  such  use- 
ful and  amiable  qualification,  yet  it  is  no  effectual  safeguard  whereby 
to  keep  out  ambitious,  unprincipled  men  from  office,  or  a  seat  in  the 
public  councils.     And,  I  moreover  hold,    that  the  cause  of  Christi- 
anity doth  not  require  such  a  qualification  to  support  it.     This  re- 
ligion is  founded  on  a  rock  and   supported  by  a  power  which  hu- 
manity cannot  affect-»-it  does  not  want  the  secular  arm  to  defend  it 
— its  divine  origin,  and  its  own  intrinsic  merit,  ever  have  been,  and 
ever  will  be,  its  firmest  support.     What  have  the  powers  of  the 
world  to  do  with  such  a  religion  ?     Experience  has  demonstrated 
that  when  left  to  the  umpire  of  reason  and  of  argument,  it  has  tri- 
umphed the  most  brilliantly  over  the  attacks  of  infidelity.     Inquisi- 
tions, test  acts  and  fanaticism,  with  their  gibbets — their  racks — and 
their  faggots,  may  produce  martyrs  and  hypocrites,  but  such  writers 
as  Watson  and  Paley  have  displayed  its  true  character  by  arguments, 
which  have  put  infidelity  in  the  entire  back  ground.     And  may  I 
not  add  from  experience  that  in  those  countries  where  there  are  re- 
ligious tests,  they  have  not  been  productive  of  any  advantage  ;  even 
in  that  nation  from  whom  many  of  us  derived  our  origin,  and  where, 
in  addition  to  a  test  act,  the  most  solemn  of  the  Christian  ordinances 
are  obliged  to  be  adhered  to  as  an  additional  qualification  for  office 
— there  is  either  an  almost  total  evasion,  or  the  compliance  is  often 
made  under   circumstances  which,  while    it   gives  pain  to  many  a 
serious  Christian,  excites   mirth  in   the  breast  of  every  infidel.     I 
also  believe  the  qualifications  of  candidates  ought  to  be  confided  to 


166  MASSACHUSETTS     CONVENTION. 

the  electors,  who  generally  take  them  from  the  neighborhood,  and 
will  therefore  be  the  best  judges  of  their  moral  and  mental  powers, 
and  should  it  unfortunately  happen  that  an  unfit  citizen  has  been 
introduced  into  office — the  electors,  so  long  as  virtue,  patriotism  and 
Christianity  predominate,  will  avail  themselves  of  the  frequency  of 
elections  to  obtain  a  remedy  by  a  change  of  character  ;  and  that  the 
evil  will  be  much  sooner  remedied  than  if  it  is  left  to  be  done 
through  the  crucible  of  a  test  act.  I  moreover  think,  that  while  the 
scriptures  seem  to  reprobate  the  presumption  of  demanding,  and  the 
fallacy  of  trusting,  to  mere  professions  of  faith,  they  plainly  point  to 
the  policy  of  preferring  a  trust  in  moral  worth  and  excellence. 
Who  art  thou,  O  man,  that  judgest  another  ?  With  his  own  master 
he  is  to  stand  or  fall.  "  These  people  draw  nigh  to  me  with  their 
motiths,  but  their  hearts  are  far  estranged  from  me."  "Not  every 
one  that  saith  Lord!  Lord!  shall  enter  the  kingdom  of  heaven." 
But  Peter,  speaking  under  the  impulse  of  an  awful  rebuke  and  a 
solemn  monition  from  heaven  against  his  bigoted  views,  declared, 
that  he  now  was  satisfied.  God  was  no  respecter  of  persons,  but  of 
every  nation,  "he  who  feared  God  and  wrought  righteousness" 
would  be  accepted,  whether  Jew  or  Gentile.  And  surely  man, 
fallible  man,  ought  not  to  require  from  his  fellow  man  other  and 
greater  qualifications  for  an  earthly  office,  than  is  required  from  him, 
by  whom  kings  reign  and  princes  decree  justice,  for  an  admission 
into  the  society  of  just  men  made  perfect.  No,  sir,  the  qualifica- 
tions for  those  celestial  abodes  depend  not  on  principles  which  in 
their  tendencies  may  work  an  abomination,  or  may  produce  a  false- 
hood. They  depend  on  the  performance  of  moral  and  social  duties. 
He  that  hath  from  pious  and  benevolent  motives  fed  the  hungry, 
clothed  the  naked,  and  visited  the  widowed  and  the  friendless  in 
their  distress  and  administered  to  their  comfort  and  relief,  though 
he  may  never  have  made  a  declaration  of  his  religious  creed,  will 
be  invited  and  welcomed  by  the  heavenly  messenger  to  enter  into 
and  partake  of  the  joys  of  his  Lord.  It  has  been  said  that  the  Chris- 
tian religion  is  calculated  to  soften  the  manners  and  purify  the 
mind,  and  thereby  produce  more  reverence  toward  the  government, 
and  a  prompt  and  ready  obedience  to  the  laws.  This  I  will  admit 
— but  I  repeat  it  with  this  reservation,  that  those  advantages  result 
from  its  moral  precepts,  and  not  from  doctrinal  points.  I  will  not 
say  that  the  omission  of  a  religious  test  in  the  constitution  of  the 
United  States,  or  of  the  individual  states,  with,  as  I  think,  the  ex- 
ception of  Vermont,  Delaware  and  Maryland,  ought  to  operate  as  a 
sufficient  reason  for  us  to  erase  it  from  ours  ;  but  I  would  ask 
whether  in  those  states  you  perceive  among  their  citizens  greater 
reverence  for  the  laws,  more  marks  of  morality,  or  a  greater  display 
of  Christian  devotion  and  benevolence,  than  in  those  states  which 
have  none  ?  In  making  the  aforegoing  observations,  I  hope  it  will 
not  be  considered  as  in  any  manner  intending  to  weaken  the  cause 
of  Christianity  or  of  aiding  the  cause  of  infidelity.  I  make  them 
because  I  verily  believe,  in  forming  or  revising  the  social  compact, 


-  MASSACHUSETTS    CONVENTION.  167 

we  ought  wholly  to  exclude  every  principle  which  by  possible  con- 
struction may  interfere  with  the  consciences  of  men,  thereby  leaving 
them  and  their  religious  opinions  where  alone  they  ought  to  be  left, 
"  to  Him  who  searcheth  the  heart  and  knows  our  inmost  thoughts." 
Whether  the  individual  has  or  has  not  formed  a  correct  religious 
opinion  is  nothing  to  us,  as  civilians. 

"  For  modes  of  faith,  let  graceless  zealots  fight, 
His  can't  be  wrong  whose  life  is  in  the  right." 

Indeed,  sir,  I  think  that  so  far  from  injuring  of  the  Christian  cause, 
I  am  aiding  it — when  doubting  men  are  left  to  the  freedom  of  their 
own  wills,  they  will  be  the  more  apt  to  listen  to  the  arguments  in 
support  of  Christianity  than  when  shackled  by  test  acts,  or  any  other 
interference  of  the  civil  government.  I  will  further  lastly  add,  that 
this  was  the  opinion  of  some  of  our  most  able  divines  and  our  most 
enlightened  statesmen,  when  assembled  for  a  purpose  nearly  similar 
to  this  for  which  we  are  now  in  session — they  decidedly  declared 
that  test  acts  were  improper  and  inexpedient  to  be  inserted  in  the 
social  compact.  Such  were  the  opinions  of  the  Rev.  Messrs.  Shute, 
Backus,  Payson,  and  Thatcher,  and  also  of  the  late  learned  Chief 
Justice  Parsons — and  I  would  not  forget  to  mention  the  late  pious 
and  amiable  Dr.  Belknap.  Believing  then  sir,  as  I  verily  do,  that 
to  retain  any  religious  test,  however  liberal,  is  neither  required  for 
the  safety  of  religion,  nor  for  the  safety  of  the  Commonwealth ;  that 
it  is  unjust  in  principle — fallacious  as  to  the  effect  to  be  produced 
— pernicious  in  its  consequences — and  an  unwarrantable  assumption 
of  the  unalienable  rights  of  a  citizen,  and  also  that  it  is  repugnant 
to  one  of  the  most  essential  moral  precepts  of  Christianity  which  in- 
culcates, "that  whatsoever  I  would  that  men  should  do  unto  me, 
this  I  ought  to  do  unto  them  ;"  I  hope  the  principle  to  which  I  have 
alluded  will  be  left  out  of  the  constitution,  now  that  we  are  called 
to  revise  it. 

After  Mr.  Prince  sat  down,  the  Chairman  said,  that  as  the  organ 
of  the  committee,  he  would  observe,  that  it  was  contrary  to  the  rules 
of  deliberative  assemblies  to  read  written  speeches. 

Mr.  Qjjincy  differed  from  the  chairman.  He  said  it  was  a  right, 
which  every  member  should  be  permitted  to  exercise. 

Mr.  Webster  said  the  gentleman  was  out  of  order,  as  there  had 
been  no  appeal  from  the  decision  of  the  chair. 

Mr.  Q,uincy  said  then  he  did  appeal. 

The  Chairman  said  he  did  not  mean  to  make  a  decision,  but  a 
suggestion  merely. 

Mr.  J.  Phillips  of  Boston  observed  in  substance,  that  from  the 
observations  of  the  chairman  of  the  select  committee,  it  appeared 
evident  that  the  citizens  of  this  Commonwealth  had  the  right  to  re- 
quire of  their  rulers,  the  declaration  now  provided  in  the  constitu- 
tion. It  should  be  constantly  recollected,  that  it  is  the  business  of 
this  Convention  to  propose  amendments  to  the  existing,  and  not 
frame  a  new,  constitution.  He  did  not  believe  the  citizens  of  this 
Commonwealth  were  prepared,  by  erasing  from  this  instrument  this 


168  MASSACHUSETTS    CONVENTION.  « 

declaration,  virtually  to  express  an  opinion,  that  it  was  indifferent  to 
them  whether  their  rulers  should  be  Christians  or  the  followers  of 
Mahomet.  Had  this  declaration  required  the  belief  of  the  doctrines 
of  Calvin,  or  Arminius,  or  of  any  founder  of  a  sect,  he  should  con- 
cur in  rejecting  it ;  but  he  did  not  expect  at  this  period  in  a  Christian 
community,  that  any  objection  would  be  made  to  these  words,  "I 
believe  the  Christian  religion,  and  have  a  firm  persuasion  of  its 
truth," — being  all  that  the  constilfition  requires.  One  class  objects 
to  this  declaration,  on  the  ground  that  it  is  inconsistent  with  the 
rights  of  a  citizen  to  require  any  evidence  of  his  religious  belief. 
Why  then  retain  that  part  of  the  report  which  requires  an  appeal  to 
the  Supreme  Being- — the  oath  of  office  ?  There  may  be  found,  he 
hoped  it  never  would  be  the  case,  persons  elected  to  the  Legislature 
who  disbelieved  the  existence  of  God.  If  the  argument  is  correct, 
to  require  this  oath  is  inconsistent  with  their  rights,  he  inquired  if 
it  could  be  now  a  subject  of  doubt  whether  the  inhabitants  of  this 
Commonwealth  professed  to  be  a  Christian  people  ?  But  it  had  been 
intimated  by  the  chairman  of  the  select  committee,  that  some  ob- 
jected to  this  declaration  because  they  considered  it  could  not  be 
made  with  truth,  by  any,  except  those  highly  favored  persons  who 
have  attained  to  the  full  assurance  of  their  interest  in  the  Savior. 
This  was  new  to  him,  and  he  should  wish  to  hear  those  who  enter- 
tained this  opinion,  offer  the  arguments  on  which  it  is  grounded. 
At  present  he  should  only  express  his  desire  that  the  subject  might 
receive  the  most  deliberate  attention. 

Mr.  Hussey  of  Nantucket  had  observed,  with  much  satisfaction, 
that  the  committee  had  recommended  such  an  alteration  of  the  con- 
stitution as  would  enable  the  people  of  the  Commonwealth  to  avail 
themselves  of  the  virtues  and  talents  of  the  denomination  of  Christians 
called  Quakers,  who  had  heretofore  been  excluded  from  holding  im- 
portant offices,  because  they  could  not  conscientiously  take  the  oath 
required  for  entering  upon  these  offices.  He  knew  many  whose  qual- 
ifications were  of  the  first  order,  who  had  heretofore  been  thus  exclud- 
ed. He  believed  that,  besides  those  who  belong  to  this  denomination 
of  Christians,  there  were  many  other  good  citizens  of  tender  conscien- 
ces who  held  themselves  bound  by  the  literal  import  of  the  injunction 
in  scripture,  "Swear  not  at  all,"  who  would  still,  by  the  terms  of 
the  article  as  proposed  to  be  amended,  be  excluded  from  office. 
He  therefore  moved  to  amend  the  resolution  by  striking  out  after 
the  word  Quakers  the  words  "and  shall  decline  taking  said  oath," 
and  inserting,  "and  any  other  person  who  cannot  by  the  principles 
of  his  religious  faith  take  an  oath,  and  shall  decline  taking  the  same." 

Mr.  Webster  said  that  this  particular  subject  had  been  referred 
to  the  select  committee  and  they  had  made  a  report  upon  it.  He 
suggested  that  it  would  be  more  proper  to  enter  into  consideration 
of  the  amendment  proposed,  when  that  report  should  be  taken  up. 

Mr.  S.  A.  Wells  requested  that  the  resolution  might  be  read. 

The  Chairman  was  proceeding  to  read  the  several  resolutions  of 
the  report  of  the  committee,  not  having  understood  the  gentleman 
who  called  for  the  reading. 


MASSACHUSETTS    CONVENTION.  169 

Mr.  Adams  of  Q,uiney.  moved  that  the  report  should  be  taken  up 
paragraph  by  paragraph  ;  it  was  impossible  for  gentlemen  to  act  un- 
derstandingly  on  the  whole  together.  He  said  they  should  take  it 
up  link  by  link;  if  a  link  was  found  defective,  it  should  be  broken, 
and  those  which  were  perfect  should  remain. 

Mr.  Nichols  of  South  Reading  said  he  doubted,  if  the  motion 
of  the  gentleman  from  Nantucket  should  be  withdrawn,  and  the 
present  resolution  adopted,  whether  the  subject  of  the  motion  could 
come  before  the  committee  on  the  other  resolve.  He  asked  for  in- 
formation. 

The  Chairman  said  he  had  no  doubt  at  all,  that  it  could. 

Mr.  Tuckerman  of  Chelsea  observed  that  he  supposed  the  ques- 
tion now  before  the  committee  to  be,  whether  the  religious  test  in 
the  constitution  of  1780,  shall  be  retained,  or  whether  the  resolu- 
tions now  proposed  by  the  select  committee  shall  be  adopted.  He 
observed  that,  at  the  hazard  of  being  accused  of  bigotry,  and  nar- 
rowness of  mind,  he  must  take  the  ground  of  defence  of  the  consti- 
tution on  this  subject,  as  it  now  stands.  He  said  that,  in  reflecting 
upon  the  test,  he  had  not  anticipated  the  suggestion  of  any  doubt 
concerning  the  right,  should  this  Convention  have  the  disposition,  to 
retain  it.  The  constitution  declares  every  man  to  be  eligible  to  all 
the  high  offices  of  the  State,  on  the  condition  of  certain  prescribed 
qualifications.  Yet  if  there  was  any  probability  that  any  people  of 
color  would  be  elected  to  fill  either  of  these  offices,  he  presumed 
that  no  doubt  would  be  felt,  either  as  to  the  right,  or  the  propriety,  of 
their  exclusion.  There  would,  without  doubt,  be  a  provision  in  the 
constitution  for  their  exclusion  ;  or,  it  would  be  required,  that  these 
offices  should  be  holden  only  by  the  white  inhabitants  of  the  Com- 
monwealth. And  if,  as  is  without  doubt  a  fact,  ninety-nine  out  of 
a  hundred  of  the  people  of  this  Commonwealth  are  in  their  faith 
Christians,  it  seems  to  be  as  unquestionable  as  any  one  of  the  rights 
of  a  people,  to  require  that  their  rulers  shall,  in  their  faith,  be  Chris- 
tians. The  argument  of  the  honorable  chairman  of  the  committee 
on  this  subject,  was  very  simple,  but  very  complete  and  satisfactory, 
that  if  two  candidates  for  an  office  be  before  the  public,  every  indi- 
vidual had  a  perfect  right  to  vote  for  one  because  he  is  a  Christian, 
and  not  to  vote  for  the  other  because  he  is  an  infidel.  And  if  every 
individual  have  this  right,  the  great  majority  of  Christians  in  the 
Commonwealth  have  as  clear,  and  full  a  right,  to  make  faith  in  the 
Christian  religion  a  prerequisite  of  office.  He  would  say  no  more 
on  the  subject  of  the  right.  He  thought  that,  on  no  good  ground, 
it  could  be  contested.  The  great  questions  then  on  the  subject  re- 
gard the  expediency  of  abolishing  the  existing  test,  and  the  propriety 
of  the  substitution  proposed  in  the  resolution.  On  the  question  of 
giving  up  the  test,  he  remarked,  that  an  argument  for  its  abolition 
was,  that  the  State  would  thus  obtain,  in  its  high  and  important 
offices,  the  talents  of  a  few  men,  who  do  not  believe  the  Christian 
religion.  He  replied,  that  during  forty  years  in  which  this  test  has 
stood  in  our  constitution,  we  have  never  wanted  men,  in  sufficient 
22 


170  MASSACHUSETTS     CONVENTION. 

abundance,  for  all  the  offices  in  which  it  is  required.  And  that  no 
apprehension  can  be  felt,  whether  we  shall  continue  to  have  candi- 
dates enough,  who  will  not  shrink  from  the  test,  for  every  depart- 
ment of  government  which  they  can  he  called  to  fill.  The  test  is 
so  very  broad,  that  it  excludes  no  one  of  all  the  denominations  of 
Christians.  He  remarked,  that  we  should  be  exposed  to  much  con- 
fusion and  error  on  this  subject,  if  we  should  consider  the  test  now 
required,  as  having  any  relation  to  the  very  objectionable  tests  which 
have  sometimes  been  required.  The  test  established  by  the  English 
constitution,  for  example,  required  a  belief  of  the  thirty-nine  articles 
of  the  church  of  England.  He  would  resist,  with  all  the  energy  of 
the  small  powers  that  he  possessed,  any  definition  in  the  constitu- 
tion, of  what  Christianity  is,  as  a  faith  to  be  required  of  those  who 
may  be  elected  to  office ;  and  had  he  not  heard  the  suggestion  of 
the  honorable  chairman  of  the  select  committee,  that  there  were 
gentlemen  in  that  committee  who  thought  that  a  solemn  declaration 
of  belief  of  the  Christian  religion  could  be  made  by  those  only,  who 
were  assured  also  of  an  eternal  interest  in  the  promises  of  our  religion, 
he  should  have  thought  that  every  man,  who  had  been  convinced 
by  evidence  of  the  truth  of  this  religion,  and  who  felt  the  divine 
authority  of  its  doctrines  and  precepts,  would  conscientiously  have 
made  this  declaration.  He  respected  the  opinions  of  gentlemen, 
who  gave  this  construction  to  the  language  of  the  test ;  though  he 
could  not  think  the  language  to  be  fairly  susceptible  of  this  import. 
As  he  understood  the  declaration,  it  implied  only  that  belief,  which 
is  a  security  to  the  people,  that  their  rulers  receive  the  great  funda- 
mental principles,  which  are  the  best  security  of  good  laws,  and  of 
a  good  administration  of  government.  He  said  that,  in  his  view, 
the  most  beautiful  feature  of  those  parts  of  our  present  constitution, 
which  concern  religion,  is,  that  it  recognizes  Christianity  as  the  re- 
ligion of  the  State,  in  the  great  principles  in  which  its  various  sects 
agree  ;  leaving  unnoticed  those  in  which  they  differ.  Any  man 
therefore,  he  thought,  who  believes  that  Christianity  is  a  divine  rev- 
elation, can  make  the  declaration  now  required,  and  comprehend  in 
trfat  declaration,  all  that  it  is  intended  to  embrace. 

On  the  question  of  the  propriety  of  abolishing  the  test,  he  said, 
his  objections  were  still  more  solemn.  Either  the  religion  of  Jesus 
Christ  is  from  God  or  it  is  not.  Either  we  are  accountable  to  God 
for  all  our  means  and  opportunities  of  advancing  the  interests  of  this 
religion,  or  we  are  not.  If  our  religion  be  from  God,  and  if  it  be 
our  duty,  by  all  means  which  are  consistent  with  its  spirit,  to  pro- 
mote its  progress,  it  is  a  question  on  which  we  ought  to  pause, 
whether  we  shall  open  the  door  of  office  indiscriminately  to  those 
who  believe,  and  to  those  who  reject,  this  revelation  of  God's  will. 
We  all  know  the  descending  influence  of  example.  If  men  should 
be  elevated  to  high  and  responsible  stations,  who  are  enemies  of 
Christianity,  may  we  not  look  with  some  apprehension  to  the  conse- 
quences ?  Sir,'  if  this  test  had  not  been  established  in  1780,  I  am 
not  certain  that  I  should  now  have  been  disposed  to  advocate  it ;  I 


MASSACHUSETTS    CONVENTION.  171 

might  have  felt  a  sufficient  security  in  the  election  of  Christian 
magistrates  without  it.  But  it  has  now  become  associated  with  the 
sentiments,  and  habits,  and  feelings  of  forty  years  ;  and  if  you  now 
remove  it,  you  declare  to  the  people,  and  they  will  not  misunder- 
stand the  declaration, — that  you  do  not  deem  it  to  be  of  importance 
that  our  magistrates  should  be  Christians.  Changes  which  affect 
long  established  associations  should  be  made  very  cautiously.  The 
gentleman  from  Boston  cites  to  us  the  words  of  our  Lord,  render  to 
Ccesar  the  thing's  that  are  Cmsar's  ;  I  hope  that  we  shall  feel  the 
importance  of  the  precept.  But  my  New  Testament'  does  not  add, 
"leave  to  God  the  things  that  are  God's."  I  am  told  to  render  to 
God  the  things  that  are  God's.  And,  sir,  we  owe  it  to  God,  to  Christ, 
and  to  our  own  souls,  to  do  what  we  may  for  the  extension  and  se- 
curity of  our  faith  as  Christians  :  and  to  give  our  influence,  whatever 
it  may  be,  to  the  election  of  magistrates,  who  will  make  laws,  and 
administer  justice,  in  the  spirit  of  Christianity.  On  these  grounds 
I  am  opposed  to  the  resolutions  of  the  committee  ;  and  wish  that 
the  test,  from  which  no  inconvenience  has  yet  been  experienced, 
may  be  retained  in  the  constitution. 

Mr.  Dearborn  of  Roxbury  regretted  that  the  subject  of  religion 
was  introduced  into  that  body,  but  since  the  gates  of  the  temple 
were  thrown  open  he  should  with  hesitating  awe  enter  in  with  the 
multitude,  and  he  hoped  he  should  come  out  without  having  com- 
mitted any  offence  which  should  destroy  his  hopes  of  happiness  in 
a  future  world.  He  said  he  was  well  pleased  with  the  report  of  the 
committee,  and  trusted  there  was  sufficient  liberality  in  these  en- 
lightened days  to  sanction  the  amendment  proposed  to  be  made  by 
it  in  the  constitution.  It  was  a  lamentable  fact,  that  our  ancestors, 
who  fled  to  this  country  to  enjoy  freedom  of  religion,  brought  with 
them  the  spirit  of  religious  intolerance.  We  were  however  to  look 
for  their  excuse  in  the  history  of  their  times.  Of  the  constitutions 
of  the  several  United  States,  those  of  this  State  and  of  Maryland 
were  the  only  ones  which  were  marked  by  bigotry  and  ecclesiastical 
intolerance.  This  was  owing  to  peculiar  circumstances  existing  at 
the  time  of  their  adoption.  These  circumstances  are  passed  away. 
At  the  present  time,  this  test  was  an  unjust  exaction  and  a  violation 
of  the  unalienable  rights  of  the  people.  He  referred  to  the  opinion 
of  the  learned,  pious  and  illustrious  Locke,  that  it  was  not  the  busi- 
ness of  religion  to  interfere  with  the  civil  government.  It  was  an 
established  principle  that  acts,  not  opinions,  were  the  subject  of 
laws.  Political  opinions  were  not  subject  to  a  test;  why  should 
those  upon  religion  be  subject  to  any  ?  They  had  no  right  to  com- 
pel a  man  to  throw  open  the  portals  of  his  mind  and  discover  his 
religious  sentiments.  He  trusted  such  oppression  would  not  prevail 
in  this  free  and  enlightened  country.  There  was  no  authority  for 
it  in  the  scriptures,  and  it  was  not  until  the  third  century  that  per- 
sons raised  to  civil  offices  were  required  to  believe  in  any  particular 
religious  creed.  He  had  heard  it  said  that  this  test  will  exclude 
immoral  and  wicked  men  from  office.     He  asked,  if  such  had  been 


172  MASSACHUSETTS    CONVENTION. 

the  effect  of  tests  in  other  countries.  On  the  contrary,  he  thought 
the  tendency  of  them  was  to  exclude  the  good  and  conscientious 
only.  The  offer  of  a  sceptre  had  induced  princes  to  cross  them- 
selves, or  to  throw  off  their  allegiance  to  the  pope,  just  as  suited 
their  views  of  aggrandizement.  It  would  be  said  that  other  nations 
have  religious  tests.  He  believed  that  many  of  the  nations  of  Eu- 
rope had  discarded  them,  and  in  Great  Britain  he  said  the  test  act 
was  a  blot  in  their  statute  book.  It  was  passed  in  times  of  political 
division,  and  was  intended  to  operate  against  the  papists,  but  it  was 
found  to  apply  equally  to  protestant  dissenters,  and  it  was  after  a 
long  time  and  many  trials  in  parliament,  that  the  protestant  dissen- 
ters were  able  to  obtain  relief.  In  England,  a  man  now  goes  to 
take  the  sacrament,  not  to  repent  of  his  sins,  but  because  he  is  chosen 
first  lord  of  the  treasury.  A  measure  being  adopted  by  a  great  na- 
tion was  no  proof  of  its  wisdom  or  utility.  The  declaration  of  inde- 
pendence which  proclaims,  and  the  constitution  of  the  United  States 
which  prescribes  our  rights,  require  no  test;  and  he  could  see  no 
reason  why  a  test  should  be  required  by  our  State  constitution. 
(The  above  is  but  a  sketch  of  the  gentleman's  argument;  we  do 
not  pretend  to  do  justice  to  his  language.) 

Mr.  Hubbard  of  Boston  said  that  what  with  the  sermon  of  the 
gentleman  from  Boston  (Mr.  Prince,)  and  what  with  the  elaborate 
oration  of  the  gentleman  from  Roxbury,  (Mr.  Dearborn,)  he  did 
not  know  how  the  remarks  he  should  offer  would  be  received  by 
the  committee  ;  he  differed  however  from  both  of  those  gentlemen 
in  his  views  of  the  present  subject.  He  held  with  the  chairman  of 
the  select  committee,  (Mr.  Webster,)  that  the  people  had  a  right  to 
require,  if  they  thought  it  expedient,  of  their  officers  a  declaration 
of  belief  in  some  religious  system.  As  we  were  a  Christian  people, 
we  had  a  right  to  insist  that  our  rulers  should  declare  their  belief 
in  the  same  religion.  The  right  of  exacting  this  declaration  stood 
on  the  same  ground  as  the  right  of  exacting  an  oath  of  allegiance, 
or  oath  of  office.  Gentlemen  had  said  this  requisition  was  depriving 
men  of  their  unalienable  rights.  He  did  not  agree  with  them. 
The  right  to  be  elected  to  office  was  not  an  unalienable  right.  It 
affected  neither  a  man's  life,  liberty,  nor  conscience.  The  question 
then  is,  is  it  expedient  to  require  this  declaration  ?  This  question 
*  was  probably  agitated  when  the  constitution  was  made  ;  and  he 
would  ask,,  have  circumstances  changed  since  that  time  ?  We  were 
a  Christian  people  then ;  and  are  we  not  now  ?  And  do  not  the 
same  reasons  continue  for  supporting  the  Christian  religion  ?  He 
said  they  were  sent  there  to  see  what  amendments  to  the  constitu- 
tion were  necessary.  He  denied  that  it  would  be  an  amendment  to 
admit  a  mahometan,  or  a  deist,  or  a  jew,  to  hold  an  office  over  a 
Christian  people.  He  had  learned  of  but  two  persons,  Major  HaAvley 
and  one  since,  who  had  ever  objected  to  making  the  declaration  re- 
quired by  the  constitution.  He  thought  there  would  be  inconven- 
ience from  striking  out  this  declaration ;  that  it  would  be  a  disre- 
spect  to  our   fathers,  and   a  national  sin.      The  third  article  of  the 


MASSACHUSETTS    CONVENTION.  17 3 

bill  of  rights  was  at  present  a  part  of  the  constitution.  If  then  it  is 
required  to  support  the  Christian  religion,  was  it  not  wise  to  have 
Christian  rulers  ?  Was  it  wise  to  commit  our  religion  to  the  care 
of  enemies  ?  He  did  not  see  the  policy  of  striking  out  the  declara- 
tion, nor  had  any  sufficient  reason  been  shown  in  'favor  of  that 
proceeding.  The  evils  mentioned  by  the  gentleman  from  Roxbury, 
arose  from  sectarian  tests  ;  yet,  however  impolitic  the  test  act  of 
Great  Britain  might  be  considered,  there  was  no  country  where  there 
was  better  morality  or  sounder  religion.  He  concluded  by  moving 
to  amend  the  report  by  adding  to  the  first  resolution  the  following 
words,  being  the  same  as  are  now  contained  in  the  constitution, 
viz.:  Any  person,  chosen  governor,  lieutenant  governor,  counsellor, 
senator  or  representative,  and  accepting  the  trust,  shall,  before  he 
proceed  to  execute  the  duties  of  his  place  or  office,  make  and  sub- 
scribe the  following  declaration,  viz.,  "I,  A.  B.,  do  declare,  that  I 
believe  the  Christian  religion  and  have  a  firm  persuasion  of  its  truth." 
Mr.  Austin  of  Boston  observed  that  it  appeared  to  be  the  gentle- 
man's object  to  amend  the  resolution  by  inserting  in  it  what  the 
committee  had  proposed  to  reject.  He  hoped  that  his  motion  would 
not  prevail.  It  was  to  retain  in  the  constitution  a  provision  inserted 
forty  years  ago,  Which  the  greater  liberality  and  intelligence  of  the 
present  day  would  not  have  introduced.  If  it  is  an  error  in  the 
constitution  we  ought  to  correct  it.  It  required  that  certain  officers, 
omitting  certain  others  without  any  reasons  for  the  distinction,  should 
make  a  declaration  of  their  religious  belief  as  a  qualification  for  the 
office.  He  did  not  agree  with  the  chairman  of  the  select  committee 
who  reported  the  resolution,  that  we  had  a  right  to  demand  this 
qualification.  On  the  contrary  he  held  that  we  had  no  right  to  de- 
mand it — that  every  one  who  contributes  to  the  expenses  of  govern- 
ment and  bears  his  share  of  the  public  burthens,  has  a  right  to  be  a 
candidate  for  popular  favor.  This  was  the  general  rule.  He  ad- 
mitted there  were  exceptions.  We  have  the  right  to  demand  the 
qualifications  of  age,  property  and  residence,  because  they  are  neces- 
sary to  insure  the  proper  performance  of  the  duties  of  the  office. 
But  this  qualification  related  to  opinions  which  do  not  bear  upon 
the  duties  of  government  and  are  not  connected  with  the  public 
safety.  This  was  the  distinction — if  we  pass  this  line  there  is  no 
place  to  stop.  No  one  would  say  that  a  belief  in  Christianity  was 
indispensable  in  legislators.  If  the  laws  would  not  be  well  made — 
if  the  government  could  not  be  carried  on — if  society  would  be  in 
danger  without  a  declaration  of  belief  in  the  doctrines  of  Christianity, 
then  this  would  be  within  the  exceptions  to  the  general  rule.  But 
it  is  argued  that  although  it  is  not  necessary  for  the  preservation  of 
civil  society,  it  is  necessary  to  show  our  respect  for  the  institutions 
of  Christianity.  The  first  is  a  legitimate  purpose,  the  other  an  un- 
lawful one.  If  it  was  agreed  that  it  was  proper  that  all  those  who 
held  public  offices  should  believe  in  the  Christian  religion,  he  was 
willing  to  say  that  he  held  in  little  respect  the  judgment  of  any  one 
who  in  the  present  enlightened  state  of  society,  and  with  the  present 


174  MASSACHUSETTS    CONVENTION. 

means  of  information,  should  not  be  satisfied  with  the  evidences  of 
Christianity,  and  still  less  the  integrity  of  any  one  who  should  dis- 
believe without  examination.  But  this  was  merely  his  opinion  as 
an  individual.  And  who  should  judge  the  people — it  is  their  right — 
let  them  judge — give  them  means  of  information.  But  place  him 
who  believes,  and  him  who  sneers  at  religion,  side  by  side  as  candi- 
dates for  office,  and  let  the  people  decide  between  them.  They  may 
be  trusted  to  decide  correctly.  This  is  the  theory  of  our  govern- 
ment. He  proceeded  to  the  question  of  expediency.  Has  the  test 
a  good  tendency  ?  The  test  was  relied  upon  as  a  security,  and  the 
people  have  sometimes  been  imposed  upon,  because  they  supposed 
that  the  government  would  look  to  the  object.  But  the  test  was 
evaded,  and  the  laws  brought  into  contempt.  The  Christian  religion 
needs  not  oaths  and  tests  to  protect  it  any  more  than  it  does  force. 
Its  empire  will  be  maintained  and  extended  by  neither  the  one  nor 
the  other,  but  the  only  aid  which  can  be  given  to  secure  its  triumph, 
is  the  diffusion  of  knowledge.  It  was  argued  that  the  test  being  a 
part  of  the  present  constitution,  it  ought  not  to  be  taken  out.  By  tak- 
ing it  from  the  constitution  we  no  more  violate  the  principles  adopted 
by  the  framers  of  this  instrument,  than  they  violated  principles  pre- 
viously established.  In  1631,  it  was  ordained  that  no  one  should 
be  a  freeman,  and  have  the  right  of  voting,  who  was  not  a  church 
member.  This  he  contended  was  the  true  theory  if  we  would  have 
a  religious  test.  We  should  go  to  the  source — stand  at  the  ballot 
box,  and  as  each  individual  came  with  his  vote  in  his  left  hand,  re- 
quire him  to  hold  up  his  right,  and  swear  to  his  belief  in  the  Christian 
religion.  This  was  the  system  of  our  ancestors^  but  it  was  after- 
wards abolished,  and  in  1651  they  adopted  a  stricter  rule  of  exclusion. 
They  required  that  the  voter  should  not  only  be  a  member  of  the 
church,  but  should  believe  in  the  Christian  religion,  as  it  was  pro- 
claimed by  the  orthodox  writers  of  the  day.  At  the  time  the  con- 
stitution was  adopted,  by  a  belief  in  the  Christian  religion  was  meant 
an  adherence  to  the  orthodox  church  of  the  day.  This  interpreta- 
tion would  exclude  very  many  whom  at  the  present  day  gentlemen 
would  not  exclude.  By  taking  out  this  provision  of  the  constitution, 
we  adopt  the  spirit  of  those  who  framed  that  instrument.  It  was 
not  very  discreditable  to  them,  if,  after  forty  years'  experience  of  the 
test,  it  should  be  found  inapplicable  to  our  present  condition,  and  he 
did  not  think  that  in  rejecting  it  we  should  show  any  disrespect  to 
them  or  to  religion  itself.  We  only  say  it  is  unnecessary  to  mix  the 
affairs  of  church  and  state. 

Mr.  Foster  of  Littleton  said  that  as  he  was  on  the  select  com- 
mittee, he  felt  more  disposed  to  make  a  few  remarks  on  the 
present  question,  than  he  should  otherwise  have  done.  In  some  of 
the  speeches  which  had  been  made,  there  appeared  to  him  to  be 
more  of  declamation  and  fancy  than  solid  argument.  He  did  not 
know  that  the  views  of  gentlemen  were  not  correct ;  he  could  only 
say  they  were  not  his  own.  He  said  there  was  a  great  influence  in 
words — some  of  them  had  a  bad  sound.     Such  was  the  word  test ; 


MASSACHUSETTS    CONVENTION.  175 

and  from  the  arguments  he  had  heard,  he  should  suppose  that  relig- 
ion was  not  a  harmless  thing  ;  so  at  least  they  struck  his  mind. 
What  is  this  test  ?  not  what  it  is  in  other  countries  ;  it  is  a  simple 
declaration  of  belief  in  Christianity.  The  gentleman  from  Rox- 
bury  had  said  a  great  deal  in  very  intelligible  and  forcible  language, 
about  sectarian  persecution  in  other  nations,  and  brought  them 
home  to  our  own  country.  But  this  declaration  had  no  more  to  do 
with  the  persecuting  spirit  of  our  ancestors,  than  with  the  witch- 
craft of  Salem.  We  live  in  a  more  enlightened  age,  and  it  is  owing 
to  the  diffusion  of  the  knowledge  of  Christianity.  This  declaration 
has  nothing  to  do  with  particular  doctrines — we  ought  not  to  abol- 
ish it  because  there  are  different  opinions.  The  gentlemen  have  no 
objection  to  the  declaration  themselves.  They  all  believe  in  Chris- 
tianity ;  it  is  only  for  the  benefit  of  some  imaginary  characters  that 
they  are  so  solicitous.  There  have  been  only  two  persons  known 
who  have  stumbled  upon  this  stumbling  stone.  One  in  Northamp- 
ton, now  dead,  and  the  other — he  must  not  mention  names — but 
the  chair  would  know  and  the  committee  would  know.  The  first 
was  a  conscientious  man,  a  believer  in  Christianity  and  a  member 
of  the  church ;  and  yet  he  could  not  make  this  declaration,  because 
it  was  required  by  the  constitution.  If  this  was  not  fantastical,  he 
did  not  know  what  was.  If  he  were  living,  perhaps  he  might  ex- 
plain. Gentlemen  seem  to  say,  that  it  is  well  to  be  religious  at 
home  ;  we  will  be  very  good  in  our  private  capacities,  but  when 
we  come  here,  don't  say  a  word — when  we  are  placed  in  an  ele- 
vated situation,  and  can  do  good  by  our  example.  When  your 
candle  is  lit,  put  it  under  a  bushel,  not  on  a  candlestick.  He  would 
go  farther.  There  is  at  this  day  an  unusual  zeal  for  the  diffusion  of 
Christianity,  even  for  extending  it  beyond  our  own  country.  But 
if  it  is  so  mischievous  a  thing  at  home,  why  send  it  to  other  coun- 
tries to  spoil  them  ?  When  some  think  the  millenium  is  coming, 
they  say,  put  away  all  the  Christian  religion.  He  concluded  by 
appealing  to  our  own  experience  under  the  constitution.  If  there 
was  a  land  on  earth  where  toleration  was  enjoyed  in  its  fullest  ex- 
tent, it  was  America ;  and  nowhere  more  completely  than  in  the 
Commonwealth  of  Massachusetts.  He  hoped  the  declaration  would 
continue  to  make  a  part  of  our  constitution. 

Mr.  S.  A.  Wells  said  that  he  had  the  honor  of  being  upon  the 
committee  which  reported  the  resolve  that  is  now  under  considera- 
tion :  that  he  approved  of  and  voted  with  the  majority.  But  his 
conclusion  was  drawn  from  very  different  premises  from  those 
which  had  been  laid  down  and  stated  by  the  gentlemen  who  were 
of  the  same  opinion  as  he.  They  deny  the  right  in  the  people  to 
prescribe  any  such  condition  as  a  test,  to  those  whom  they  should 
select  as  their  rulers.  This  right  in  the  people,  he  said,  was  in  his 
opinion  clear  and  indisputable.  The  people  undoubtedly  have  the 
right  to  institute  such  form  of  government  as  they  conceive  to  be 
best  calculated  to  secure  their  peace  and  happiness ;  the  people  are 
the  majority,  and  if  this  majoritv  is  composed  of  Christians,  and 


176  MASSACHUSETTS    CONVENTION. 

conceived  that  their  security  and  happiness  required  that  their 
rulers  should  also  be  Christians,  they  had  an  undoubted  right  to 
prescribe  as  a  condition,  that  their  rulers  should  testify  to  their  be- 
lief in  the  Christian  religion.  The  advocates  of  the  resolve,  which 
prescribes  an  oath  of  allegiance,  when  they  deny  the  right  of  the 
people  to  annex  this  as  a  condition  of  office,  because  it  violates  the 
right  of  conscience  which  is  unalienable,  involved  themselves  in  a 
dilemma ;  for 'if  it  be  an  interference  in  the  right  of  conscience  to 
require  that  persons  who  may  be  chosen  by  the  people  to  certain 
offices  shall  swear  to  their  belief  in  the  Christian  religion,  it  must 
also  be  an  interference  in  the  right  of  conscience,  to  require  that 
they  shall  swear  by  the  name  of  God  himself:  and  what  right  then, 
have  they  to  require  a  declaration  in  this  form  any  more  than  in  the 
other.  If  the  people  have  the  right  of  establishing  government, 
they  have  the  right  of  establishing  such  form  of  government  as  they 
may  think  best  calculated  to  promote  their  security  and  happiness, 
whether  it  be  a  republican,  monarchical,  or  aristocratical,  or  even 
a  hierarchy.  After  it  shall  be  established,  nobody  will  doubt  their 
right  to  require  an  oath  of  allegiance  by  those  persons  who  may  be 
selected  to  administer  it.  If  then,  it  be  a  republic,  and  one  of  the 
minority  who  is  in  favor  of  one  of  the  other  forms,  is  elected  to 
office,  and  cannot  or  will  not  subscribe  the  oath  of  allegiance,  he, 
according  to  the  arguments  of  the  gentlemen  who  deny  the  rights 
of  prescribing  conditions,  is  deprived  of  his  right  as  a  citizen,  or  is 
disfranchised.  The  right  of  prescribing  a  religious  test  is  equally 
clear  as  the  right  of  prescribing  a  political  test.  The  Convention 
that  framed  our  present  constitution,  in  wisdom,  learning,  and  patri- 
otism, and  a  knowledge  of  the  rights  of  man,  was  not  inferior  to 
this.  I  shall  be  very  unwilling  therefore,  that  this  Convention 
should  sanction  an  opinion  by  which  that  enlightened  body  of  men 
should  be  declared  either  ignorant  of  the  right  of  the  people,  or  that 
they  knowingly  violated  it.  He  said  that  he  was  in  favor  of  the  re- 
solve, because  he  was  not  settled  in  opinion  that  it  was  expedient 
that  such  a  condition  for  office  should  be  required,  as  that  which  it 
is  proposed  to  remove.  He  felt  satisfied  that  in  another  part  of  the 
constitution  sufficient  provision  was  made  on  the  subject  of  religion. 
He  alluded,  he  said,  to  the  third  article  in  the  bill  of  rights.  It  was 
to  this  he  looked  for  all  those  benefits  which  society  were  to  derive 
from  the  public  worship  of  God,  and  from  a  general  diffusion  of 
piety,  religion  and  morality.  This  would  make  a  Christian  people, 
if  anything  would,  and  consequently  we  may  expect  that  the  people 
would  elect  none  to  office  who  are  not  Christians.  He  might,  he 
said,  bring  forward  additional  arguments  in  favor  of  this  opinion,  but 
did  not  judge  it  necessary.  He  however  would  not  conclude  with- 
out making  a  few  remarks  on  the  observations  of  the  gentleman 
from  Roxbury,  who  denied  the  right  in  the  people  to  require  that 
their  magistrates  should  subscribe  a  religious  test.  As  an  extenua- 
tion, I  presume,  of  the  crime  of  violating  the  right  of  conscience  of 
which  the   great  men  who  framed  the  constitution  of  1780  were 


MASSACHUSETTS     CONVENTION.  177 

guilty,  he  said,  that  they  acted  under  the  influence  of  those  religious 
prejudices,  which  made  a  part  of  that  government  of  which  they  had 
declared  themselves  independent.  I  had  thought  that  the  gentleman 
was  acquainted  with  the  history  of  his  own  country,  and  the  char- 
acter of  those  wise,  learned  and  patriotic  men.  No  one  can  know 
much  of  their  characters,  who  will  assert  that  they  were  under  the 
influence  of  any  such  prejudices,  either  civil  or  religious :  if  it  had 
been  so,  we  should  not  probably  be  in  possession  of  the  civil  and 
religious  privileges  which  we  now  enjoy. 

Mr.  Stone  of  Boxborough  said  he  hoped  the  amendment  to  the 
resolution  would  be  adopted.  He  was  aware  that  religion  was  an 
affair  entirely  between  the  creature  and  his  Creator,  and  that  govern- 
ment could  prescribe  no  forms  to  be  observed  that  should  supply  the 
place  of  it.  But  he  thought  that  some  religion  was  necessary  in 
every  community  ;  that  it  ought  to  be  recognized  in  the  constitution 
of  government.  Some  religion  is  recognized,  and  makes  a  part  of 
the  law  of  every  country.  It  forms  the  criterion  of  right  and 
wrong.  It  supplies  to  a  great  extent  the  place  of  law — without  it 
we  should  have  no  principle  by  which  in  many  things  we  should 
be  governed.  Many  laws  suppose  the  existence  and  acknowledg- 
ment of  a  certain  system  of  religion.  Laws  are  established  that 
require  the  observance  of  the  Sabbath.  This  is  a  distinct  recogni- 
tion of  the  Christian  religion.  It  would  be  unjust  towards  the  Jews 
who  observe  a  different  Sabbath,  unless  we  have  a  right  to  recognize 
one  religion  in  preference  to  another.  Without  religion  we  have 
no  standard  for  governing  the  conduct.  Gentlemen  may  say  that 
reason  should  be  our  guide.  It  is  no  guide — it  sometimes  directs 
one  thing,  sometimes  another ;  it  is  not  to  be  trusted  without  the 
aid  of  religion,  and  some  general  system  should  be  recognized  by  the 
government.  A  particular  system  was  not  wanted  ;  they  had  been 
in  other  countries  the  cause  of  bloodshed  and  numerous  evils.  But 
some  general  system  was  demanded  and  he  hoped  the  amendment 
would  be  adopted. 

Mr.  Wilde  of  Newburyport  had  had  some  difficulty  in  forming 
an  opinion  on  the  question,  and  his  mind  was  not  now  entirely  free 
from  doubt.  He  should,  however,  offer  a  few  arguments,  and  at- 
tempt to  explain  the  ground  of  the  opinion  which  he  had  adopted, 
and  the  vote  he  should  give.  He  should  not  at  this  late  hour  go 
fully  into  the  argument  of  a  question  which  had  been  so  fully 
discussed  ;  but  merely  state  a  few  of  those  which  appeared  to  have 
the  greatest  weight.  He  first  considered  the  question  whether  the 
people  have  a  right  to  require  from  their  rulers  any  religious  quali- 
fication. He  thought  this  right  beyond  all  doubt.  The  people 
are  the  source  of  the  sovereign  power.  It  is  an  attribute  of  sover- 
eignty to  use  all  means  necessary  to  promote  the  public  good, 
provided  they  do  not  interfere  with  the  laws  of  God,  or  the  inalien- 
able rights  of  individuals.  To  require  this  declaration  does  not 
interfere  with  the  rights  of  conscience.  No  person  has  any  con- 
science about  becoming  a  legislator.  He  is  not  obliged  to  accept  of 
23 


178  MASSACHUSETTS     CONVENTION. 

office,  and  he  has  no  right  to  claim  it.     The  constitution  reprobates 
the  idea  that  any  individual  has  a  right  to  office.     It  is  expressly 
declared  in  the  bill  of  rights  that  "the  idea  of  man  born  a  magis- 
trate, lawgiver,  or  judge,  is  absurd,  and  unnatural."     It  depends  on 
the  will  of  the  people  what  qualifications  they  will  require  for  those 
they  elect  to  office.     This  doctrine  was  already  illustrated  by  the 
chairman   of  the  select  committee  who  opened  the  debate.     They 
not  only  have  a  right  to  elect  whom  they  see  fit,  but  they  have  a 
right  to  decide  now  by  a  general  rule,  what  qualifications  they  will 
demand.     It  may  be  objected,  that  we  ought  not  to  bind  posterity. 
This  objection  is  not  sound.     For  every  form  of  government  is  in- 
tended to  bind  posterity.     He   proceeded  to  inquire  whether  it  is 
expedient  to  retain  the  test.     It  is  contended,  that  to  reject  it,  would 
be  an  encouragement  of  infidelity,  and  an  expression  of  the  opinion 
of  the   Convention,  that  we  have   no  respect  for  religion.     If  he 
thought  that  the  alteration  would  have  this  effect,  it  would  be  an 
unanswerable  argument ;  but  he  doubted  whether  it  would  have  this 
effect.     If  all  the  articles  relating  to  religion  were  to  be  struck  out 
it  might  be  so.     But  other  parts  of  the  constitution  will  contain  an 
ample  expression  of  our  respect  for  Christianity.     In  the  twenty- 
third  article  of  the  bill  of  rights,  the  duty  of  public  worship,  and  of 
supporting   the  institutions  of  religion,  is  fully  expressed.     Those 
articles,  he  trusted,  would  in  substance  be  retained,  and  they  would 
contain  an  ample  expression  of  opinion  in  favor  of  religion,  and  of 
the   obligation  to  support   it.     He  knew  there  were   different  opin- 
ions, and  it  was  difficult  to  reconcile  them,  unless  all  in  the  spirit  of 
conciliation  were  disposed  to  yield  something.     In  this  spirit,  al- 
though he  saw  no  important  reason  for  rejecting  the  test,  he  was 
willing  to  relinquish  it.     He  did  not  see  the  necessity  of  retaining 
it,  though  he  could  well  suppose  the  case  when  it  might  be  neces- 
sary.    If  Christians  were  a  bare  majority  in  the  Commonwealth,  it 
would  be  right,  because  it  would  be  necessary  for  the  preservation 
of  the  religion.     But  there  was  now  nothing  to  fear.     There  would 
be  no  inconvenience  in  giving  up  the  test.     He  had  known  few  in- 
stances in  forty  years  experience  in  which  it  had  been  of  any  effect. 
Cases  may  arise  in  which  it  would  have  an  effect,  but  the  number 
must  be  small.     There  may  be  those  who  have  a  general  belief  in 
Christianity,  and  who  yet  hesitate  to  express  it  in  so  strong  terms  as 
are  required  by  the  constitution.     It  is  possible  that  there  may  be 
well  disposed  and  conscientious  persons  who  hesitate  in  declaring 
their  belief  in  everything  recorded  in  the  Scriptures,  and  whom  yet 
it  would  not  be  desirable  to  exclude  from  office.     It  has  been  stated 
also,  that  there  are  others  who  put  an  interpretation  upon  the  terms 
of  the  declaration  much  more  strict  than  was  intended.     As  he  did 
not  conceive  that  in  the  present  state   of  the  community,  such  a 
declaration  was  necessary  ;   as  it  was   important,  not   only  that  we 
should  have  good  laws,  but  such  as  the  greatest  number  of  the  peo- 
ple will  be  satisfied  with  ;  he  thought  it  might  be  expedient  to  reject 
it.     He  had  not  the  least  objection  to  any  part  of  it,  but  he   was 


MASSACHUSETTS    CONVENTION.  179 

willing  to  give  up  something  for  the  purpose  of  meeting  the  views 
of  others. 

The  committee  then  rose,  reported  progress,  and  had  leave  to  sit 
again. 

Mr.  Perley  of  Boxford  had  leave  of  absence  on  account  of  ill 
health. 

The  House  adjourned. 


Tuesday,  December  5. 

The  House  was  called  to  order  at  10  o'clock,  and  attended  pray- 
ers made  by  the  Rev.  Mr.  Jenks  ;  after  which,  the  journal  of  yes- 
terday's proceedings  was  read. 

Mr.  Richardson  of  Hingham  said  he  had  a  resolution  which  he 
wished  to  offer  to  the  Convention.  He  had  been  well  pleased  with 
the  motion  which  the  gentleman  from  Boston,  (Mr.  Webster)  inti- 
mated that  he  should  make,  to  have  the  resolution  which  formed 
the  subject  of  yesterday's  debate,  lie  on  the  table  until  the  com- 
mittee which  had  under  consideration  the  third  article  of  the  bill  of 
rights  should  make  their  report,  in  order  that  both  subjects  should 
be  referred  to  the  same  committee  of  the  whole. 

The  President  told  the  gentleman  he  must  make  some  motion, 
to  serve  as  a  foundation  for  his  remarks. 

Mr.  Richardson  then  offered  a  resolution  that  the  Convention 
should  proceed  to  revise  the  constitution,  beginning  at  the  preamble 
and  so  going  on  in  course.  Every  day's  proceeding,  he  said,  had 
satisfied  him  of  the  propriety  and  necessity  of  this  mode,  which  had 
been  originally  proposed  by  the  gentleman  from  Dracut  (Mr.  Var- 

NUM.  ) 

Mr.  Blake  of  Boston  said  the  gentleman  was  out  of  order,  as  this 
question  had  already  been  determined. 

The  President  decided  that  the  gentleman  from  Hingham  was 
not  in  order. 

Mr.  Richardson  was  going  on  to  make  further  remarks. 

The  President  told  him  the  subject  of  his  motion  had  been  de- 
cided, and  that  he  was  out  of  order.  He  might  appeal  from  the 
decision  of  the  chair  if  he  thought  proper. 

On  motion  of  Mr.  Webster  of  Boston  the  Convention  resolved 
itself  into  a  committee  of  the  whole  upon  the  unfinished  business  of 
yesterday.     Mr.  Dana  of  Groton  in  the  chair. 

The  Chairman  stated  to  the  committee  that  the  question  before 
them  was  upon  the  amendment  offered  by  the  gentleman  from  Bos- 
ton (Mr.  Hubbard)  relating  to  the  declaration  of  belief  in  the  Chris- 
tian religion. 

Mr.  S locum  of  Dartmouth  said  that  if  the  refusing  this  amend- 
ment were  going  to  abolish  the  Christian  religion,  he  should  by  all 
means  be  in  favor  of  adopting  it ;  but  he  had  no  apprehension  of 
that  being  the  case.  If  the  amendment  had  proposed  to  require  this 
declaration  to  be  taken  by  the  judges  of  the  supreme  court,  he 


180  MASSACHUSETTS    CONVENTION. 

should  have  liked  it  better.  He  wished  to  know  whether  other 
persons  were  not  to  have  any  religion  besides  the  members  of  the 
Legislature.  He  thought  requiring  this  declaration  was  useless.  It 
was  very  pleasant  to  come  to  the  General  Court,  and  a  man  would 
make  this  declaration  even  if  he  did  not  believe  in  the  Christian 
religion.  He  asked  if  taking  this  declaration  would  make  such  a 
man  a  Christian  ?  On  the  contrary,  he  thought  it  would  make  him 
tenfold  more  the  child  of  the  demon  than  he  was  before.  Religion 
was  a  thing  between  the  creature  and  Creator ;  it  was  not  to  be 
regulated  by  the  laws  of  men.  When  the  constitution  of  Virginia 
was  forming,  the  Baptists  became  very  uneasy,  and  they  went  to 
General  Washington  about  it ;  he  told  them  that  if  the  constitution 
was  going  to  deprive  any  man  of  the  free  exercise  of  his  faith,  he 
should  oppose  it.  Mr.  S.  hoped  the  amendment  would  not  be 
adopted. 

Mr.  Baldwin  of  Boston  said  that  after  the  arguments  of  yesterday 
he  could  not  deny  the  right  of  the  people  to  require  such  a  declara- 
tion of  their  rulers  ;  the  only  question,  therefore,  remaining  related 
to  the  expediency  of  the  measure.  Would  it  tend  to  make  men 
more  Christian  ?  He  thought  not.  He  considered  it  to  be  useless, 
or  worse  than  useless.  If  a  man  was  already  a  believer,  taking  this 
declaration  would  not  make  him  more  so  ;  and  if  a  man  did  not  be- 
lieve in  the  Christian  religion,  it  would  give  him  no  satisfaction  to 
have  him  say  that  he  believed  it.  He  thought  the  solemn  oath  re- 
quired of  legislators  was  sufficient,  without  obliging  them,  to  take 
this  declaration.  The  terms  Christian  religion  required  defining. 
Some  men  understood  one  thing  by  them,  and  some  another.  He 
was  a  Christian  himself,  and  he  thought  every  believer  ought  to  pro- 
fess his  belief,  but  in  his  individual  capacity,  and  not  as  a  qualifica- 
tion for  holding  a  seat  in  the  General  Court.  He  could  see  no  reason 
why  such  a  declaration  should  not  be  required  of  the  members  of 
the  Convention  just  as  much  as  of  members  of  the  Legislature.  He 
should  vote  against  the  amendment. 

Mr.  Nichols  of  South  Reading  said  his  reasons  for  opposing  the 
amendment  were  different  from  any  which  had  yet  been  urged.  If 
we  were  a  perfectly  independent  people,  we  might  have  a  right  to 
require  such  a  declaration,  but  the  constitution  of  the  United  States 
is  paramount  to  the  state  constitution,  and  that  constitution  guaran- 
ties to  the  several  states  a  republican  form  of  government.  Our  con- 
stitution, with  this  provision  in  it,  would  be  an  anti-republican  form 
of  government,  and  to  make  it  consistent  with  the  principles  con- 
tained 'in  the  declaration  of  our  independence,  we  should  alter  a 
clause  in  that  declaration  so  as  to  read  all  Christians  are  born  free 
and  equal,  instead  of  all  men  are  born  free  and  equal.  The  requisi- 
tion had  been  placed  by  gentlemen  upon  the  same  ground  as  the 
requiring  candidates  for  office  to  be  possessed  of  property.  He 
agreed  with  gentlemen  in  the  justness  of  the  comparison,  and  he 
hoped  that  requirement  too  would  be  abolished  ;  so  that  the  people 
might  elect  whom  they  pleased  to  fill  any  office.     The   gentleman 


MASSACHUSETTS    CONVENTION.  181 

from  Chelsea  (Mr.  Tuckerman)  had  said  there  would  be  Christians 
enough  to  fill  offices.  He  was  acquainted  with  many  excellent 
men  among  the  Universalists,  and  he  had  no  doubt  there  might  be 
enough  of  them  found  capable  to  fill  all  offices  ;  but  this  was  no  rea- 
son for  confining  the  selection  to  that  class.  He  was  not  a  deist, 
but  from  what  he  understood  of  their  tenets,  there  might  be  very- 
good  men  among  them  every  way  capable  of  sustaining  any  civil 
office,  and  the  community  ought  not  to  lose  their  services  because 
they  had  not  a  qualification  which  has  nothing  to  do  with  the  fitness 
for  office.  This  requisition  was  anti-republican  and  repugnant  to 
the  liberties  of  the  people.  He  said  he  would  notice  one  argument 
which  had  been  used  on  the  other  side,  viz.,  that  this  exclusion  would 
exclude  nobody  ;  if  so,  he  would  ask  why  not  strike  it  out  of  the 
constitution  ? 

Mr.  Bliss  of  Springfield  said  that  believing  the  right  of  the  peo- 
ple to  exact  such  a  declaration  as  is  contained  in  the  amendment, 
and  being  satisfied  in  general  with  the  arguments  which  had  been 
urged  in  favor  of  retaining  such  a  declaration  in  the  constitution,  he 
should  trouble  the  committee  with  but  a  few  remarks.  He  differed 
in  opinion  from  gentlemen  who  had  said  this  declaration  was  in  the 
nature  of  an  oath.  It  was  not  so  ;  there  was  nothing  in  it  like  call- 
ing God  to  witness,  or  like  a  promise ;  it  was  a  declaration  merely, 
to  be  subscribed  in  the  presence  of  several  persons.  He  should  not 
have  risen,  however,  on  account  of  his  dissent  on  this  point.  He 
differed  as  to  other  points  from  several  gentlemen  who  had  expressed 
their  sentiments.  The  more  the  constitution  was  examined,  the 
more  perfect  appeared  the  symmetry  of  its  parts.  There  was  a  fit- 
ness in  requiring  this  declaration  to  be  made  by  the  persons  men- 
tioned in  the  constitution,  because  the  constitution  enjoins  it  upon 
those  persons  to  provide  for  the  support  of  the  Christian  religion.  It 
is  not  made  a  part  of  the  duty  of  the  judges  of  the  supreme  court  to 
provide  for  the  support  of  Christianity,  and  they  are  therefore  not  re- 
quired to  make  this  declaration.  In  relation  to  the  question  of  ex- 
pediency, he  made  a  distinction  between  inserting  such  a  provision 
in  a  new  constitution,  and  striking  it  out  of  a  constitution  which 
had  been  in  operation  so  long  as  our  constitution.  He  would  not 
say  how  he  should  act  in  the  former  case,  but  he  thought  to  strike 
the  declaration  out  of  our  constitution,  would  have  a  deplorable 
effect.  He  insisted  upon  the  importance  of  sustaining  religion  and 
morality.  Everything  which  looked  like  a  disregard  to  religion, 
had  an  injurious  effect,  and  he  was  persuaded  that  striking  out  this 
clause  would  have  a  bad  effect  on  many  minds,  whether  justly  or 
not,  he  would  not  say.  What  was  said  of  the  religious  scruples  of 
different  sects  deserved  very  little  consideration.  This  declaration 
had  nothing  to  do  with  sects  or  particular  doctrines.  Nothing  was 
said  in  it  of  the  effect  it  was  to  have  on  particular  minds  ;  it  did  not 
include  the  practical  influence  which  some  gentlemen  seemed  to 
suppose  ;  it  required  only  a  firm  persuasion  of  the  truth  of  the  Chris- 
tian religion.  But  "even  if  there  were  a  few  men  who  put  such  an 
erroneous  construction  upon  it,  the  good  of  the  community  should 


182  MASSACHUSETTS    CONVENTION. 

not  be  sacrificed  for  their  sakes.  It  had  been  said  that  this  requisi- 
tion would  have  but  little  influence  on  people  ;  he  thought  other- 
wise. He  thought  that  men  exalted  to  the  office  of  legislators 
would  deem  it  of  importance  to  tell  what  they  really  believed.  An 
oath  might  have  no  effect  on  some  minds ;  they  could  not  help  it, 
though  it  would  be  a  deplorable  thing.  Ought  oaths,  therefore,  to 
be  abolished  ?  It  was  just  so  with  this  declaration.  He  deplored 
the  influence  which  the  striking  out  this  declaration  would  have  on 
the  minds  of  the  people,  and  particularly  of  youth.  It  had  been 
said  that  good  men  would  be  excluded  by  this  requirement.  If 
there  should  be  a  few  persons  in  half  a  century  in  this  condition, 
they  ought  not  to  be  regarded  in  an  instrument  which  has  in  view 
the  general  good.  A  remark  had  fell  from  the  learned  gentleman 
from  Newburyport  (Mr.  Wilde)  which  he  thought  was  not  so  sound 
as  was  to  be  expected  from  that  quarter.  He  (Mr.  W.)  had  said  that, 
as  the  Commonwealth  was  generally  Christian,  little  danger  or  in- 
convenience was  to  be  apprehended  from  striking  out  this  declara- 
tion, as  few  men,  not  Christians,  would  be  elected  ;  whereas,  if  the 
State  had  been  nearly  equally  balanced  between  Christianity  and 
some  other  religion,  it  would  be  proper  to  have  such  a  provision. 
He  did  not  disagree  with  the  gentleman  on  the  last  point ;  but  the 
argument  would  be  stronger  for  abolishing  the  requirement,  be- 
cause it  would  exclude  more  persons  from  the  government.  He 
hoped  this  declaration  would  remain  in  the  constitution,  and  that 
the  amendment  would  prevail. 

Mr.  Dean  of  Boston  said  if  he  was  persuaded  that  retaining  this 
declaration  in  the  constitution  would  do  any  good,  or  reflect  honor 
on  the  Commonwealth,  he  would  retain  it  ;  but  he  was  far  from 
being  of  that  opinion.  The  design  of  making  this  declaration  of 
belief  in  the  Christian  religion  was  not  evangelical ;  it  was  not  con- 
strued to  include  all  that  is  contained  in  such  a  profession  of  reli- 
gion ;  and  he  asked  whether  it  was  proper  to  have  two  ways  of  pro- 
fessing religion,  one  evangelical,  the  other  a  matter  of  state  policy. 
It  was  important  that  men  who  rule  over  a  Christian  country  should 
be  Christians,  but  it  should  be  effected  by  other  means  than  by  the 
constitution.  Let  no  legal  incapacity  of  this  kind  interfere  between 
the  people  and  their  choice  of  rulers.  It  had  been  said  to  be  the 
duty  of  the  government,  to  bring  all  their  influence  to  the  support 
of  Christianity ;  he  doubted  it.  Let  there  be  the  example  of  good 
legislators ;  this  was  better  than  all  their  entries  in  the  journal. 
Their  religion  should  be  voluntary,  not  compelled.  You  may  burn 
a  man  at  the  stake,  but  you  cannot  convert  him  in  that  manner.  If 
legislators  are  not  good  men,  it  produces  a  bad  effect  to  have  their 
declaration  staring  them  in  the-  face.  Let  a  man's  conscience  and 
his  duty  to  God  lead  him  to  the  altar  of  religion.  If  you  wish  men 
to  be  Christians,  let  there  be  good  examples  ;  let  Christian  ministers 
do  their  work  ;  support  religious  institutions  ;  and  the  less  legisla- 
tion the  better.  The  religion  of  England  was  hot  owing  to  her 
test  acts  and  corporation  oaths,  but  to  her  bishoprics,  her  deaneries, 


MASSACHUSETTS    CONVENTION.  183 

&c.  Surely,  Mr.  Chairman,  this  is  a  much  better  mode  for  us  to 
adopt,  than  to  have  recourse  to  religious  tests.  Leave  religion  to 
the  care  of  God,  and  it  will  spread  its  influence  over  the  globe. 

Mr.  Freeman  of  Sandwich  said  he  rose  as  an  humble  individual  to 
lift  his  voice  against  the  rejection  of  the  declaration.  Alluding  to 
the  quarter  from  which  much  of  the  opposition  to  it  had  come,  if 
he  might  use  the  sentiment  of  a  profane  author  upon  so  sacred  a 
subject,  he  could  not  but  exclaim,  "  And  thou  too  Brutus — this  is  the 
unkindest  cut  of  all."  He  was  surprised  to  hear  so  many  ministers 
of  the  gospel  whom  he  might  have  expected  to  be  always  ready  to 
advocate  the  cause  of  religion  and  morality,  giving  their  testimony 
in  favor  of  expunging  this  article.  He  asked  what  practical  injury 
had  resulted  from  the  article,  and  what  practical  benefit  would  re- 
sult from  exchanging  it.  Who  and  what  are  we  ?  Are  we  not  de- 
scendants of  the  Pilgrims,  who  suffered  so  many  hardships  for  the 
purpose  of  securing  the  privilege  of  worshipping  God  and  preserv- 
ing the  institutions  of  religion  in  their  purity,  now  engaged  in  the 
work  of  establishing  civil  government  under  the  auspices  of  the 
Christian  religion  ?  It  was  formerly  required  that  a  person  should 
be  a  church  member,  to  entitle  him  to  participate  in  the  govern- 
ment ;  and  at  this  time  the  people  have  an  undoubted  right  to  make 
church-membership  a  qualification  for  office.  In  his  opinion  men 
of  better  lives  and  more  useful  members  of  society  would  now  be- 
come rulers,  if  such  were  the  qualification.  It  would  have  a  good 
effect  upon  the  individual  and  upon  the  community.  He  would 
have  no  objection  to  demand  such  a  qualification  in  the  chief  mag- 
istrate. He  was  an  advocate  for  religious  liberty.  He  hoped  never 
to  see  the  spirit  of  the  constitution  as  it  respects  religious  freedom 
departed  from.  He  would  have  no  sect  preferred,  no  restraint  upon,/ 
the  consciences,  opinions,  or  even  caprices  of  men.  Let  them  go 
where  they  please,  but  in  a  Christian  country  let  it  be  required  that 
candidates  for  office  shall  be  Christians.  He  alluded  to  an  argument 
which  had  been  founded  upon  the  omission  to  require  the  test  from 
judges  of  the  supreme  judicial  court.  He  said  that  as  the  judges 
are  appointed  by  the  executive,  this  restriction  upon  the  discretion 
was  necessary — care  being  taken  to  preserve  the  purity  of  the  foun- 
tain, the  streams  would  be  pure.  The  inhabitants  of  the  town  he 
represented  were  a  Christian  people,  and  he  should  be  ashamed  to 
go  home  and  meet  them  after  having  expunged  this  declaration 
from  the  constitution. 

Mr.  Savage  said,  the  proposed  amendment  is  only  the  words  of 
the  constitution  of  1780.  (Here  an  interruption  occurred  by  re- 
peated and  confused  calls  of  the  question,  which  was  terminated  by 
the  Chairman,  who  said  the  highest  honor  of  his  life  was  to  pre- 
side in  these  deliberations,  conjuring  the  members  of  the  commit- 
tee to  permit  the  progress  of  the  debate.)  The  language  of  the 
constitution,  requiring  all  officers,  executive  or  legislative,  to  declare 
their  belief  in  the  Christian  religion  and  firm  persuasion  of  its  truth, 
does  not  seem  a  heavy  restriction.  It  is  a  declaration  which  the 
great  majority,  he  hoped  he  might  say  every  member  of  this  Con- 


184  MASSACHUSETTS    CONVENTION. 

vention,  would  make  with  readiness.  He  had  taken  it  with  pleasure 
several  years  since,  and  would  not  object  on  his  own  account.  But 
he  wished  to  have  the  restriction  on  others  removed,  and  more  es- 
pecially claimed  the  right  to  give  his  reasons,  because  those  which 
chiefly  operated  on  his  mind,  had  not  in  the  debate  been  stated  by 
gentlemen  in  full.  Not,  sir,  that  any  supporters  of  the  test  should 
be  charged  by  me  with  bigotry;  nor  because  our  fathers  who 
formed  the  constitution,  should  be  blamed  as  narrow  and  exclusive 
in  their  principles ;  but  because  the  result  of  the  restriction  is  inju- 
rious to  Christianity. 

The  majority  of  mankind   receive  their  religious  principles,  as 
their  other  education,  from  their  parents  and  teachers,  and  they  per- 
haps retain  them  without  inquiry.     But  men  of  cultivated  minds, 
and  many  such  there  are — when  they  begin  to  employ  the  princi- 
ples instilled  into  them  in  infancy,  and  to  reason  about  them,  often 
have  painful  and  harassing  doubts.     These  doubts  require  examin- 
ation, and  it  cannot  be  perfectly  had  by  men  of  even  great  advan- 
tages of  education,  so  as  to  lead  soon  to  certainty.     Not  always  one 
year  or  two  will  do.     Half  of  life  passes  sometimes  before  full  con- 
viction.    Yet  these  doubts,  sir,  are  a  proof  of  honesty ;  and  if  such 
men  are  excluded  from  office  till  their  doubts  are  removed,  an  im- 
proper bias  in  one  case,  or  a  prejudice  in  the  other,  is  given.     He 
could  enumerate  many  most  distinguished  men,  opposed  to  our  re- 
ligion, from  a  misfortune  in  their  early  education,  who  had  done 
great  honor  to  letters,  and  injury  to  Christianity,  for  which  their  in- 
structors were  chiefly  to  be  blamed.   But  he  would  spare  the  patience 
of  the  committee.     He  could  not,  however,  omit  one.     The  cele- 
brated Gibbon,  born  and  educated  a  protestant,  converted  or  per- 
verted to  the  Romish  church,  banished  by  his  father  to  a  foreign 
land  to  be  converted  again,  and  then  converted,   indeed,   but  to 
nothing,  almost  a  universal  skeptic.     But  for  the  injudicious  treat- 
ment of  his  parent,  he  might  have  done  as  much  honor  to  Chris- 
tianity, as  his  means  allowed  him  to  offer  injury.     Such  a  man  was 
not  afraid  to  enter  upon  office;  and  when  required  to  express  his 
assent  to  such  a  declaration  as  this  proposed,  he  either  does  or  does 
not.     He  does,  and  declares  an  untruth.     But  with  his  hypocrisy  he 
passes  equally  as  well  as  the  majority  of  firm  believers  around  him 
— and  will  not  this  prevent  his  fair  and  full  inquiry,  when  it  is  un- 
necessary for  his  purpose  ?     Or,  sir,  he  does  not  declare  his  assent, 
and  forever  after  acquires  a  prejudice  against  the  religion  that  op- 
poses his  entry  to  office.    Yet,  sir,  that  man  I  would  have  voted  for 
as  a  candidate  for  political  power,  much  as  I  differ  from  his  opinions 
on  religion.     I  would  not   insist  on  his  declaring  his  belief  of  Chris- 
tianity, because  it  might  prevent  his  conversion  to  it.     In  our  own 
country  too,  many  distinguished  men,  at  some  time  in  their  lives, 
have  not  enjoyed  a  settled  faith  in  Christianity.     I  have  been  in- 
formed on  high   authority — it  is  not  to  be  sure  within  my  own 
knowledge — that   the   illustrious  President   of  the   Convention  of 
1780,  the  venerable  Bowdoin,  afterwards  governor  of  the  Common- 


MASSACHUSETTS    CONVENTION.  185 

wealth,  was  many  years  not  a  believer  in  our  religion.  Yet  he  held 
office  with  great  approbation  of  his  constituents,  and  was  deserving 
of  it,  as  an  honest  man.  Afterwards,  by  following  the  current  of 
evidence,  on  due  conviction,  he  declared  his  assent.  But  while  in 
the  state  of  uncertainty,  had  the  test  been  proposed  to  his  mind,  do 
not  gentlemen  see  the  evil  consequences  either  of  his  assent  or  re- 
jection ?  Such  is  often  the  case  of  the  truest  asserters  of  the  faith. 
Many  reach  to  middle  age,  who  have  never  been  called  by  their 
circumstances  to  examine  the  opinions  heedlessly  received,  almost 
by  infusion,  in  their  early  childhood,  and  then  find  them,  or  some 
of  them,  unfounded,  and  thinking  the  whole  must  go  together,  have 
rejected  at  once  the  substance  and  the  accidents.  Some  they  are 
told  are  fundamentals,  which  they  are  sure  are  false ;  and  stripping 
off  these,  they  suppose  the  whole  false,  because  they  have  not 
learned  to  distinguish  the  parts.  He  wished  every  man  to  come 
into  office  without  a  prejudice  against  the  Christian  religion,  if  he 
had  not  studied  it  sufficiently  to  acquire  satisfaction  of  its  truth,  and 
thus,  he  thought,  our  principles  would  be  more  sure  to  prevail,  and 
for  this  reason  he  hoped  the  amendment  would  not  be  adopted. 

Mr.  Walker  of  Templeton  was  one  of  the  select  committee  who 
reported  this  resolution,  and  he  rose  to  express  some  of  his  reasons 
for  voting  in  favor  of  it.  The  majority  of  the  people  had  the  right 
to  adopt  such  rules  as  they  should  think  proper  for  promoting  the 
public  good,  provided  they  did  not  interfere  with  the  inalienable 
rights  of  individuals.  The  right  .of  every  one  to  be  protected  in  the 
enjoyment  of  life,  liberty,  and  property,  were  admitted  to  be  fun- 
damental principles.  As  it  regards  the  right  of  demanding  a  relig- 
ious qualification  in  a  candidate  for  office,  there  is  a  difference  of 
opinion.  Admitting  that  we  have  the  right  to  demand  it — he 
doubted  the  expediency  of  it.  He  was  opposed  to  it,  because  it 
did  no  good.  If  it  was  a  real  qualification  he  would  retain  it.  The 
experience  of  forty  years  had  not  shown  it  to  be  of  any  use.  If 
there  are  infidels,  it  will  not  operate  to  exclude  them  from  office. 
A  deist  would  consider  it  an  imposition  that  he  should  be  com- 
pelled to  make  the  declaration,  and  would  make  it  though  he  did 
not  believe  it.  Men  of  loose  lives  will  make  the  declaration — they 
have  made  it — there  have  been  bad  men  who  have  come  forward 
and  made  the  declaration,  considering  it  an  imposition,  and  that 
they  are  not  bound  by  it.  The  constituents  ought  to  be  judges  of 
the  character  of  those  they  elect — they  know  them  and  will  deter- 
mine their  qualifications.  He  did  not  agree  that  the  constitution 
should  be  approached  with  that  awe  and  trembling  which  would 
deprive  us  of  our  senses.  The  constitution  of  the  United  States 
was  the  work  of  great  and  wise  men,  and  they  did  not  consider  a 
religious  test  necessary.  He  was  not  afraid  that  our  constituents 
would  think  that  we  were  treating  religion  with  contempt — they 
are  an  enlightened  people  and  are  capable  of  judging.  He  thought 
it  his  duty  to  give  his  voice  in  favor  of  the  resolution. 

Mr.  Sturgis  of  Boston  said  that  no  gentlemen  had  attempted  to 
24 


186  .  MASSACHUSETTS     CONVENTION. 

show  that  the  test  had  produced  any  harm.  He  thought  it  incum- 
bent on  them  to  show  this,  to  authorize  striking  it  out  of  the  con- 
stitution where  we  now  find  it.  In  answer  to  the  argument  of  the 
gentleman  last  speaking,  founded  upon  the  example  of  the  United 
States  consitution,  he  contended  there  was  no  analogy  between  the 
two  cases.  He  remarked  in  answer  to  the  argument  of  the  gentle- 
man from  Boston,  that  it  would  operate  to  exclude  from  office  men 
who  have  not  made  up  their  minds  upon  the  evidences  of  Chris- 
tianity, that  he  would  not  do  gentlemen  so  situated,  so  great  an 
injury  as  to  divert  their  minds  from  the  important  duty  of  satisfying 
themselves  on  this  subject,  by  calling  them  to  public  offices  where 
their  services  could  very  well  be  dispensed  with. 

Mr.  Hussey  of  Nantucket  said  the  object  of  the  Convention  was 
to  make  such  alterations  and  amendments  in  the  constitution  as 
may  be  deemed  necessary  and  expedient.     Is  it  necessary  to  ex- 
punge that  part  of  the  constitution  which  requires  a  declaration  of 
a  belief  in  the  Christian  religion,  is  a  question  truly  momentous  and 
q  v  important.     I  would  ask,   sir,  what  benefit  can  possibly  result  to 
|  the  citizens  of  this  Commonwealth,  from  throwing  open  the  doors 
and  admitting  a  race  of  unbelievers  to  the  rights  of  legislation.     By 
'  introducing  them  to  important  offices  and  to  a  seat  in  our  Legisla- 
ture, we  shall  add  to  their  weight  and  influence,  and  consequently 
promote  the  growth  of  infidelity.     With  these  views  I  shall  be  in 
favor  of  retaining  the  religious  test. 

Mr.  Flint  of  Reading  spoke  in  favor  of  the  amendment  to  the 
resolution.  After  expressing  his  respect  for  the  framers  of  the  con- 
stitution, his  reluctance  to  change  any  important  principle  which 
they  had  established,  the  interest  which  pious  and  good  men  feel 
in  the  preservation  of  this  principle  of  the  constitution,  and  the  tears 
which  they  would  shed  if  it  were  to  be  rejected,  he  proceeded  to 
argue  that  no  advantage  would  be  gained  by  admitting  to  im- 
portant offices  men  who  have  not  a  firm  persuasion  of  the  truths 
of  Christianity. 

Mr.  Williams  of  Beverly  contended  that  there  was  more  danger 
of  insincere  professions  of  belief  if  they  were  demanded  as  a  quali- 
fication for  office,  than  there  was  in  professions  on  admission  to  the 
church.  The  temptation  of  office  may  lead  to  false  professions.  If 
he  understands  the  language  of  the  declaration  required  by  the 
constitution,  it  demands  that  belief  which  is  required  for  admission 
to  the  church  of  God.  It  contains  all  that  language  can  embrace, 
and  he  had  yet  to  learn  the  propriety  of  requiring  as  a  qualification 
for  office,  such  a  religious  profession.  Gentlemen  had  expressed  a 
reluctance  to  expunge  this  requisition  from  the  constitution  on 
account  of  its  antiquity.  He  had  not  this  respect  for  antiquity. 
Brahma  and  Confucius  were  more  ancient  than  Christianity  itself. 
He  thought  it  his  duty  to  raise  his  voice  against  the  amendment, 
and  hoped  it  would  not  succeed. 

Mr.  J.  Phillips  of  Boston  replied  to  some  of  the  arguments 
against  the  amendment.     He  was  opposed  to  any  change  in  this 


MASSACHUSETTS    CONVENTION.  187 

r 

part  of  the  constitution  as  a  departure  from  the  example  of  our  an- 
cestors, and  as  part  of  a  system  of  innovation  which  would  tend  to 
weaken  the  supports  of  religion,  and  he  should  resist  every  such 
change  as  long  as  he  had  any  power. 

The  question  was,  then  taken  on  the  amendment,  and  decided  in 
the  negative,  176  to  242. 

The  question  was  then  stated  on  the  adoption  of  the  resolution 
as  reported  by  the  select  committee,  and  decided  in  the  affirmative. 

Mr.  Ware  of  Boston  then  offered  a  resolution,  which,  after  some 
conversation  respecting  the  most  suitable  time  for  considering  it,  he 
withdrew.  The  purport  of  the  resolution  was,  that  the  constitution 
should  require  in  candidates  for  office,  the  reputation  of  being  be- 
lievers in  the  Christian  religion. 

The  second  resolution,  which  declares  what  offices  holden  under 
the  constitution,  shall  be  considered  incompatible,  was  then  taken 
into  consideration. 

Mr.  Webster  said,  that  as  the  constitution  was  framed  before  that 
of  the  United  States,  there  was  necessarily  a  deficiency  in  that  part 
of  it  which  relates  to  incompatibility  of  offices.  The  present  reso- 
lution first  provides  that  no  person  holding  any  office  under  the 
authority  of  the  United  States,  postmasters  excepted,  shall  at  the 
same  time  hold  the  office  of  governor,  lieutenant-governor,  or  coun- 
sellor, or  have  a  seat  in  the  senate  or  house  of  representatives  of  this 
Commonwealth.  It  next  provides  that  no  judge  of  any  court  in 
this  Commonwealth  and  several  other  officers,  shall  continue  to 
hold  their  offices  after  accepting  the  trust  of  a  member  of  Congress  ; 
and  that  judges  of  the  courts  of  common  pleas  shall  hold  no  other 
office  except  that  of  justice  of  the  peace,  and  militia  offices.  He 
proceeded  first  to  inquire  whether  it  was  proper  to  provide  that  no 
judges  of  any  court  should  sit  in  the  Legislature.  The  prohibition 
is  now  confined  to  justices  of  the  supreme  judicial  court.  The  com- 
mittee thought  that  there  was  no  objection  to  extending  it  to  judges 
of  the  courts  of  common  pleas  and  other  courts.  They  went  on  the 
presumption  that  when  an  office  was  established,  it  would  be  one 
which  demanded  as  much  attention  as  the  incumbent  could  con- 
veniently give  to  it.  There  was  besides  an  impropriety  in  mixing 
the  legislative  and  judicial  departments.  In  all  the  courts  there 
was  business  of  importance.  Since  the  establishment  of  the  con- 
stitution, the  courts  of  common  pleas  had  much  increased  in  impor- 
tance and  dignity,  and  they  were  likely  still  to  increase,  and  it  was 
therefore  more  expedient  that  the  judges  should  confine  their  atten- 
tion to  the  duties  of  their  offices.  There  was  also  an  objection  to 
their  holding  a  seat  in  the  Legislature,  from  the  manner  in  which 
they  are  elected.  It  seemed  improper  that  the  judges  of  the  land 
should  become  candidates  for  popular  favor  at  the  annual  elections. 
In  proposing  to  exclude  officers  of  the  United  States  from  the 
higher  offices  in  the  Commonwealth  and  from  a  seat  in  the  Legisla- 
ture, they  had  followed  the  example  of  almost  all  the  state  consti- 
tutions  recently    formed.      The   general    principle   would  exclude 


188  MASSACHUSETTS    CONVENTION. 

postmasters,  but  this  office  is,  in  a  large  proportion  of  cases,  one  of 
no  emolument,  but  of  some  trust,  and  it  appeared  not  advisable  to 
exclude  from  the  scope  of  the  postmaster-general,  in  making  these 
appointments,  so  many  persons  as  would  be  excluded ,  if  the  accept- 
ance of  the  office  were  to  shut  them  out  from  all  offices  under  the 
State  government. 

After  several  ineffectual  attempts  to  amend  the  resolution,  it  was 
finally  adopted  without  alteration. 

The  third  resolution  of  the  select  committee,  which  provides  the 
mode  in  which  amendments  shall  be  hereafter  made  to  the  consti- 
tution, were  then  taken  up. 

Mr.  Nichols  moved  to  strike  out  the  words  "two-thirds,"  with  a 
view  of  inserting  "  a  majority  "  or  "  three-fifths." 

Mr.  Webster  said,  that  if  these  words  were  struck  out  they  could 
not  be  again  inserted.  But  if  the  proposition  should  on  a  vote  be 
disapproved,  any  other  proportion  could  be  substituted.  The  com- 
mittee, in  filling  the  blank,  were  governed  both  by  their  own  sense 
of  what  would  be  the  most  proper  number,  and  by  the  consideration, 
that  this,  being  the  highest  number  which  would  probably  be 
proposed,  would  necessarily  be  first  put.  They  thought  the  Conven- 
tion would  have  a  view  to  the  permanency  of  the  constitution, 
and  would  suppose  that  it  would  be  necessary  to  change  it  only  for 
practical  purposes.  It  had  been  found,  in  the  practice  of  forty  years, 
that  it  had  served  to  protect  all  the  essential  rights  of  the  citizens ; 
that  the  great  "outlines  were  so  established  as  to  need  no  alteration. 
It  was  thought,  therefore,  that  a  provision  for  a  general  revision  was 
unnecessary. 

Any  plain,  sensible,  and  useful  alterations  which  might  be  sug- 
gested, the  people  would  see,  and  in  the  mode  proposed  would  easily 
be  effected.  It  was  not  thought  proper  that  the  Legislature  should 
have  the  power  of  submitting  such  alterations  to  the  people  by  a 
small  majority.  But  if  the  alteration  was  obviously  useful  and 
necessary,  the  public  opinion  would  demand  that  the  Legislature 
should  sanction  it  by  the  required  majority.  When  the  question 
was  once  submitted  to  the  people,  a  majority  only  was  required  to 
approve  the  amendment  proposed. 

Mr.  Parker,  of  Charlestown,  Mr.  Childs,  of  Pittsfield,  and  Mr. 
Nichols,  spoke  in  favor  of  the  amendment,  and  Mr.  Blake  and  Mr. 
Foster  against  it. 

The  question  was  then  taken  on  Mr.  Nichols's  amendment,  and 
decided  in  the  negative. 

Mr.  Webster  moved  to  amend  by  inserting  the  words,  "  with  the 
yeas  and  nays  on  the  passing  thereof,"  after  the  direction  that  the 
proposed  amendments  shall  be  entered  on  the  journals  of  the  two 
houses.     This  amendment  was  agreed  to. 

The  question  was  then  taken  on  passing  the  resolution,  and 
determined  in  the  affirmative. 

The  second  report  of  the  same  committee  relating  to  the  authority 
to  incorporate  towns  with  city  privileges,  was  then  taken  up  and 
the  resolution  read. 


MASSACHUSETTS    CONVENTION.  189 

Some  debate  was  had  upon  this  resolution,  and  the  blank  was 
filled  with  "five  thousand." 

After  further  debate,  on  motion  of  Mr.  Bliss,  the  committee  rose, 
reported  progress,  and  had  leave  to  sit  again. 

At  a  quarter  past  two  the  House  adjourned  to  nine  o'clock,  to- 
morrow. 


Wednesday,  December   6. 

The  Convention  met  at  9  o'clock,  and  attended  prayers  offered 
by  Rev.  Mr.  Palfrey. 

Mr.  Pre scott  of  Boston,  from  the  standing  committee  under  the 
third  resolution,  offered  the  following  reports,  which  were  read : 

Commonivealth  of  Massachusetts. 

In  Convention,  December  6,  1820. 
The  committee,  to  whom  it  was  referred  to  consider  whether  any,  and  if  any,  what 
alterations  or  amendments  it  is  proper  and  expedient  to  make,  in  so  much  of  the 
constitution  as  is  contained  in  the  second  section  of  the  first  chapter  of  the  second 
part,  and  respects  the  senate,  and  also  so  much  thereof  as  is  contained  in  the  third 
section  of  the  same  chapter,  and  respects  the  house  of  representatives,  ask  leave  to 
report  the  following  resolutions : — 

1.  Resolved,  That  it  is  proper  and  expedient  so  far  to  alter  and  amend  the  consti- 
tution, as  to  provide,  that  there  shall  be  annually  elected,  by  the  free-holders  and 
other  inhabitants  of  the  Commonwealth,  thirty-six  persons  to  be  senators  for  the  year 
ensuing  their  election. 

2.  Resolved,  That  it  is  proper  and  expedient  so  far  to  alter  and  amend  the  consti- 
tution, as  to  provide  that  the  number  of  districts  into  which  the  Commonwealth  shall 
be  divided  for  the  purpose  of  electing  senators,  shall  never  be  less  than  ten. 

3.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  consti- 
tution, so  as  to  provide,  that  no  county  shall  be  divided  for  the  purpose  of  forming  a 
district  for  the  election  of  senators. 

4.  Resolved,  That  it  is  proper  and  expedient  so  to  alter  and  amend  the  constitution, 
as  to  provide,  that  the  several  counties  in  the  Commonwealth  shall  be  districts  for  the 
choice  of  senators,  until  the  General  Court  shall  alter  the  same, — excepting  that  the 
counties  of  Hampshire,  Hampden,  and  Franklin,  shall  forni  one  district  for  that  pur- 
pose, and  also  that  the  counties  of  Barnstable,  Nantucket,  and  Dukes  County,  shall 
together  form  a  district  for  that  purpose,  and  that  they  shall  be  entitled  to  elect  the 
following  number  of  senators,  viz  :  Suffolk,  six  ;  Essex,  six  ;  Middlesex,  four ;  Wor- 
cester, five ;  Hampshire,  Hampden,  and  Franklin,  four  ;  Berkshire,  two ;  Plymouth, 
two ;  Bristol,  two  ;  Norfolk,  three  ;  Barnstable,  Nantucket,  and  Dukes  County,  two. 

5.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  consti- 
tution, so  as  to  substitute  "  the  first  Wednesday  in  January,"  for  "  the  last  Wednes- 
day in  May,"  in  every  place  where  these  words  occur  in  the  second  section  of  the 
first  chapter. 

6.  Resolved,  That  it  is  proper  and  expedient  so  to  alter  and  amend  the  constitu- 
tion, as  to  provide  that  the  governor,  with  four  of  the  council  for  the  time  being,  shall, 
as  soon  as  may  be,  examine  the  returned  copies  of  the  record  of  the  names  of  the 
persons  voted  for,  and  of  the  number  of  votes  against  each  name,  instead  of  five  of  the 
council,  as  is  now  provided  in  the  third  article  of  the  second  section  of  the  first  chapter. 

7.  Resolved,  That  it  is  proper  and  expedient  so  to  alter  the  constitution  as  to  pro- 
vide that  not  less  than  nineteen  members  of  the  senate  shall  constitute  a  quorum  for 
doing  business. 

8.  Resolved,  That  it  is  proper  and  expedient  so  to  alter  and  amend  the  constitu- 
tion, as  to  provide  that  every  corporate  town,  containing  twelve  hundred  inhabitants, 
and  also  all  corporate  towns  now  united  for  the  purpose  of  electing  a  representative, 
and  having  together  a  like  number  of  inhabitants,  may  elect  one  representative. 

9.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  the  constitution  so  as 
to  provide,  that  twenty  four  hundred  inhabitants  shall  be  the  mean  increasing  number 
which  shall  entitle  a  town  to  an  additional  representative. 


190  MASSACHUSETTS    CONVENTION. 

10.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  con- 
stitution so  as  to  provide  that  each  corporate  town  in  this  Commonwealth,  containing 
less  than  twelve  hundred  inhabitants, — and  also  all  the  corporate  towns  which  are 
now  united  for  the  purpose  of  choosing  a  representative,  and  have  together  less  than 
twelve  hundred  inhabitants,  shall  be  entitled  to  elect  one  representative  every  other 
year. 

11.  Resolved,  That  it  shall  be  the  duty  of  the  Legislature,  at  their  first  session  after 
the  census  which  is  now  taking  under  the  authority  of  the  United  States,  shall  be 
completed,  to  divide  the  towns  in  each  county  containing  less  than  twelve  hundred 
inhabitants,  including  towns  united  as  aforesaid,  into  two  equal  classes.  That  the 
first  of  these  classes  shall  comprise  half  the  towns  in  number,  (those  united  as  afore- 
said to  be  considered  as  one  town,)  and  those  towns  which  contain  the  greatest 
number  of  inhabitants  ;  and  that  each  of  the  towns  in  this  class  shall  be  entitled  to 
elect  one  representative  the  first  year  after  they  shall  have  been  so  classed.  That 
the  second  class  shall  consist  of  the  other  corporate  towns  in  the  county  having  less 
than  twelve  hundred  inhabitants,  including  those  united  as  aforesaid,  each  of  which 
shall  be  entitled  to  elect  one  representative  the  second  year  after  they  are  so 
classed ;  and  that  the  towns  so  classed  may  each  thereafter  continue  to  elect  one 
representative  every  other  year ;  and  if  the  towns  in  any  county  shall  happen  to  con- 
sist of  an  uneven  number,  the  town  making  such  an  uneven  number  shall  be  placed 
in  the  second  class,  and  be  entitled  to  elect  a  representative  every  other  year. 

12.  Resolved,  That  it  is  proper  and  expedient  so  to  alter  and  amend  the  constitu- 
tion, as  to  provide  that  whenever  the  population  of  any  corporate  town,  or  of  the 
towns  united  as  aforesaid,  and  classed  as  aforesaid,  shall  have  increased  to  twelve 
hundred  inhabitants,  according  to  the  census  hereafter  to  be  taken  under  the  author- 
ity of  the  United  States,  or  of  this  Commonwealth,  such  town  or  towns  so  united 
shall  thereafter  be  entitled  to  elect  a  representative. 

13.  Resolved,  That  it  is  proper  and  expedient  so  to  alter  the  constitution  as  to  pro- 
vide that  every  town  which  shall  hereafter  be  incorporated  within  this  Common- 
wealth shall  be  entitled  to  elect  one  representative,  when  it  shall  contain  twenty-four 
hundred  inhabitants,  and  not  before. 

14.  Resolved,  That  it  is  proper  and  expedient  so  to  alter  the  constitution  as  to 
provide  that  the  members  of  the  house  of  representatives  may  be  paid  for  attending 
the  General  Court  during  the  session  thereof,  out  of  the  treasury  of  the  Common- 
wealth. 

15.  Resolved,  That  is  proper  and  expedient  to  alter  and  amend  the  constitution  so 
as  to  provide,  that  not  less  than  one  hundred  members  shall  constitute  a  quorum  for 
doing  business. 

16.  Resolved,  That  it  is  proper  and  expedient  so  to  amend  the  constitution  as  to 
provide  that  no  member  of  the  house  of  representatives  shall  be  arrested  on  mesne 
process,  warrant  of  distress,  or  execution,  during  his  going  unto,  going  from,  or  his 
attending  the  General  Court. 

17.  Resolved,  That  it  is  expedient  so  far  to  alter  and  amend  the  constitution  as  to 
provide  that  the  senators  shall  have  the  like  privilege  from  arrest  as  the  members  of 
the  house  of  representatives. 

All  which  is  respectfully  submitted. 

By  order  of  the  committee, 

WILLIAM  PRESCOTT,  Chairman. 

This  report,  on  motion  of  Mr.  Prescott,  was  committed  to  a 
committee  of  the  whole,  assigned  to  Friday  at  9  o'clock,  and  ordered 
to  be  printed. 

SECOND  REPORT. 

The  committee  on  so  much  of  the  constitution  as  is  contained  in  the  second  section 
of  the  first  chapter  of  the  second  part,  and  respects  the  senate,  and  also  so  much 
thereof  as  is  contained  in  the  third  section  of  the  same  chapter,  and  respects  the 
house  of  representatives,  and  who  were  instructed  to  take  into  consideration  the 
propriety  and  expediency  of  inserting,  at  the  end  of  the  second  article  of  the  second 
section  of  the  first  chapter,  respecting  the  senate,  an  amendment,  that  on  the  first 
Monday  of  April,  or  on  day  of  the  election  of  governor,  lieu- 

tenant "governor,  and  senators,  and  the  elections  of  electors  of  president  and  vice 
president  of  the  United  States  and  representatives  to  Congress,  if*  such  elections  are 


MASSACHUSETTS     CONVENTION.  191 

to  be  had  during  the  year,  of  representatives  to  the  General  Court,  and  of  all  town 
and  county  officers,  shall  be  had  on  said  day,  ask  leave  to  report  the  following  reso- 
lutions : — 

1.  Resolved,  That  it  is  proper  and  expedient  so  to  alter  and  amend  the  constitu- 
tion as  to  provide  that  the  meetings  of  the  inhabitants  of  each  of  the  towns  in  the 
several  counties  in  this  Commonwealth,  for  the  purpose  of  electing  governor,  lieu- 
tenant governor,  senators  and  representatives  in  the  Legislature  of  this  Common- 
wealth, shall  be  holden  on  the  same  day  in  each  year. 

2.  Resolved,  That  it  is  expedient  so  to  alter  and  amend  the  constitution  as  to 
provide,  that  the  meetings  of  the  inhabitants  of  each  of  the  towns  in  the  several 
counties  in  this  Commonwealth,  for  the  purpose  of  electing  governor,  lieutenant 
governor,  senators  and  representatives  in  the  Legislature  of  this  Commonwealth,  shall 
be  holden  on  the  day  of  annually. 

3.  Resolved,  That  it  is  not  expedient  so  to  alter  the  constitution  as  to  provide,  that 
the  meetings  of  the  inhabitants  of  all  the  towns  in  the  several  counties  in  this  Com- 
monwealth shall  be  holden  on-  the  same  day  for  the  choice  of  electors  of  president 
and  vice  president  of  the  United  States  and  representatives  in  Congress,  as  for  gov- 
ernor, lieutenant  governor,  senators  and  representatives  in  the  Legislature  of  this 
Commonwealth. 

4.  Resolved,  That  it  is  not  expedient  so  to  alter  or  amend  the  constitution  as  to 
provide,  that  town  officers  or  county  officers,  shall  be  chosen  on  the  same  day  as  gov- 
ernor, lieutenant  governor,  senators  and  representatives  in  the  Legislature  of  this 
Commonwealth.  For  the  committee,  WILLIAM  PRESCOTT. 

The  report  being  read,  was  committed  to  the  committee  of  the 
whole,  assigned  to  Friday  at  9  o'clock,  and  ordered  to  be  printed. 

Mr.  Jackson  of  Boston,  from  the  committee  to  whom  the  subject 
was  committed,  reported  the  following  resolutions : 

In  Convention,  December  5,  1820. 

1.  Resolved,  That  all  such  amendments  in  the  present  constitution  of  the  Common- 
wealth, as  may  be  made  and  proposed  by  this  Convention,  shall  be  submitted  to  the 
people  for  their  ratification  and  adoption,  in  town  meetings  or  district  meetings,  to  be 
legally  warned  and  held  on  the  day  of  next;  and  at  which  meetings  all 
the  inhabitants  qualified  to  vote  for  senators  and  representatives  in  the  General  Court 
may  give  in  their  votes  by  ballot,  for  or  against  the  general  amendments  that  shall  be 
so  proposed.  And  the  selectmen  of  the  respective  towns  and  districts  shall  in  open 
meeting  receive,  sort,  count,  and  declare  the  votes  of  the  inhabitants,  for  and  against 
each  of  the  said  amendments  ;  and  the  clerks  of  the  said  towns  and  districts  shall  re- 
cord the  said  votes ;  and  true  returns  thereof  shall  be  made  out  under  the  hands  of 
the  selectmen,  or  the  major  part  of  them,  and  of  the  clerk  ;  and  the  selectmen  shall 
enclose,  seal,  and  deliver  the  same  to  the  sheriff  of  the  county,  within  fifteen  days 
after  the  said  meetings,  to  be  by  him  transmitted  to  the  office  of  the  secretary  of  the 
Commonwealth  on  or  before  the  day  of  next,  or  the  said  selectmen  may 
themselves  transmit  the  same  to  the  said  office  on  or  before  the  day  last  mentioned. 

2.  Resolved,  That  a  committee  of  this  Convention  be  appointed  to  meet  at  the 
State  House  in  Boston,  on  the  said  day  of  who  shall  open  and  examine 
the  votes  then  returned  as  aforesaid,  and  shall  as  soon  as  may  be  certify  to  his  excel- 
lency the  governor,  and  also  to  the  General  Court,  the  number  of  votes  so  returned  for 
and  against  each  of  the  said  amendments,  and  each  one  of  the  said  amendments  that 
shall  be  approved  by  a  majority  of  the  persons  voting  thereon,  according  to  the  votes 
so  returned  and  certified,  shall  be  deemed  and  taken  to  be  ratified  and  adopted  by 
the  people. 

3.  Resolved,  That  a  copy  of  all  the  amendments  made  and  proposed  by  this  Con- 
vention, shall  be  attested  by  the  president,  and  by  the  secretary  thereof,  and  transmitted 
to  his  excellency  the  governor,  and  another  copy  shall  be  attested  as  aforesaid,  and 
engrossed  on  parchment,  and  shall,  together  with  the  journal  of  the  proceedings  of 
this  Convention,  be  deposited  in  the  office  of  the  secretary  of  the  Commonwealth. 
And  a  printed  copy  of  the  said  amendments,  attested  by  the  secretary  of  this  Con- 
vention, shall  be  transmitted  as  soon  as  may  be,  to  the  selectmen  of  every  town  and 
district  of  the  Commonwealth. 

4.  Resolved,  That  all  the  amendments  made  by  this  Convention  shall  be  proposed 
in  distinct  articles;  each  article  to  consist  as  far  as  may  bo  of  one  independent  prop- 


192  MASSACHUSETTS     CONVENTION. 

osition ;  and  the  whole  to  be  so  arranged  that  upon  the  adoption  or  rejection  of  any 
one  or  more  of  them,  the  other  parts  of  the  constitution  may  remain  complete,  and 
consistent  with  each  other.  If  any  two  or  more  propositions  shall  appear  to  be  so 
connected  together,  that  the  adoption  of  one  and  the  rejection  of  another  of  them 
would  produce  a  repugnance  between  different  parts  of  the  constitution,  or  would 
introduce  an  alteration  therein,  not  intended  to  be  proposed  by  this  Convention,  such 
two  or  more  propositions  shall  be  combined  in  one  article ;  and  each  of  the  said  arti- 
cles shall  be  considered  as  a  distinct  amendment,  to  be  adopted  in  the  whole  or 
rejected  in  the  whole,  as  the  people  shall  think  proper. 

5.  Resolved,  That  the  several  articles  when  prepared  and  arranged  as  aforesaid 
shall  be  numbered  progressively;  and  the  people  may  give  their  votes  upon  each 
article  as  designated  by  its  appropriate  number,  without  specifying  in  their  votes  the 
contents  of  the  article,  and  by  annexing  to  each  number  the  words  yes  or  no,  or  any 
other  words  that  may  signify  their  adoption  or  rejection  of  the  proposed  amendment ; 
or  they  may  give  their  votes  upon  all  the  articles,  or  upon  any  number  of  them  together, 
without  being  required  to  vote  separately  and  specifically  upon  each  of  the  said  articles. 

The  resolutions  being  read,  were,  on  motion  of  Mr.  Jackson, 
ordered  to  lie  on  the  table  and  to  be  printed  for  the  use  of  members. 

On  motion  of  Mr.  Webster,  the  Convention  went  into  committee 
of  the  whole  on  the  unfinished  business  of  yesterday,  Mr.  Dana  in 
the  chair. 

The  resolution  relative  to  the  granting  of  power  to  the  Legisla- 
ture to  incorporate  towns  with  the  powers  of  city  government,  was 
taken  into  consideration. 

Mr.  Shaw  of  Boston  thought  that  if  gentlemen  would  take  time 
to  examine  the  object  of  this  amendment  they  would  give  it  a  ready 
assent.  He  disclaimed  all  idea  of  claiming  powers  or  privileges  for 
one  class  of  citizens,  which  were  not  to  be  equally  extended  to 
another.  But  an  act  of  incorporation  for  municipal  purposes  is 
equally  enjoyed  by  all  the  towns  in  the  Commonwealth.  In  other 
countries,  cities  were  incorporated  with  substantial  powers  and  privi- 
leges,— the  right  of  choosing  municipal  officers  ;  the  right  of  super- 
intending subjects  of  local  administration,  and,  in  England,  the 
right  of  choosing  members  of  parliament.  But  in  this  Common- 
wealth, every  town  is  to  all  substantial  purposes  a  city.  They  are 
towns  corporate,  having  the  power  of  choosing  their  own  officers, 
and  sending  members  to  the  General  Court,  with  jurisdiction  over 
all  their  local  and  prudential  concerns, — such  as  the  support  of 
schools  and  highways,  the  relief  of  the  poor,  the  superintendence  of 
licensed  houses,  and  other  matters  of  local  police.  They  have  the 
power  of  making  by-laws,  and  assessing  and  collecting  taxes. 
They  possess  all  the  powers  and  privileges  of  municipal  corporations 
in  Great  Britain  or  in  this  country.  If  it  were  otherwise,  and  if  it 
were  desirable  to  invest  them  with  further  powers,  it  is  within  the 
authority  of  the  Legislature  to  grant  it.  It  is  obvious  that  a  large 
and  populous  town  must  require  many  regulations,  burdensome 
and  expensive  indeed,  but  yet  necessary  to  its  security  and  comfort, 
which  are  not  necessary  and  would  not  be  useful  in  a  small  town. 
Such  are  the  regulations  of  streets,  drains,  lamps,  the  watch,  mar- 
kets, health  laws,  and  many  other  objects  of  local  policy.  Courts 
must  be  erected,  particularly  adapted  to  the  wants  of  such  a  town. 
But  these  objects  are  within  the  powers  of  the  Legislature,  and  they 


MASSACHUSETTS    CONVENTION.  193 

are  always  ready  amply  to  provide  for  them.     What,  then,  is  the 
necessity  of  granting  any  further  power  by  an  amendment  of  the 
constitution  ?     Mr.  S.  said  he  would  confine   himself  to  answering 
this  question.     The  constitution,  as  it  stands,  requires  a  form  of 
town  government,  not  adapted  to  the  condition  of  a  populous  town. 
The  inhabitants  of  towns  meet  together  for  the  purpose  of  giving 
their  votes  for  town,  county,  state,  and  United  States  officers.     In 
these  cases  the  meeting  is  not  deliberative.     But  they  have  another 
class  of  duties,  which  consists  in  deliberating  and  acting  upon  all 
questions  falling  within  their  jurisdiction,  in  which  cases  they  are  to 
be  considered  in  all  respects  as  deliberative  bodies.     But  the  consti- 
tution provides  that  the   inhabitants  shall   meet  and  the  votes  be 
given   in  open  town   meeting  ;    that  the  votes  shall  be  counted, 
sorted  and  declared  in  open  town  meeting,  in  which  the  selectmen 
shall  preside.     These  provisions  render  it  imperative  that  the  voters 
should  meet  together  in  one  body,  be  they  few  or  many.     Mr.  S. 
computed  that  the  voters  qualified  to  vote  in  town  affairs  were  about 
one  fourth  or  one  fifth  of  the  population.     In  a  town  of  forty  thou- 
sand inhabitants  this  would  give  from  eight  to  ten  thousand  voters. 
Could  this  number  of  persons  beneficially  meet  together  in   one 
body  for  the  purpose  of  election  or  deliberation  ?  *   He  thought  obvi- 
ously not.     This    then    is   the    essential    difficulty.     The  General 
Court  can  grant  powers  as  occasion  may  require,  but  cannot  dispense 
with  the  mode  of  organization  required  by  the  constitution.     What 
then  is  the  remedy  ?     It  is  to  authorize  such  an  organization  as  is 
adapted  to  the  condition  of  a  numerous  people, — such  an  organiza- 
tion as  will  admit  the  inhabitants  to  meet  in  sections  for  the  purposes 
of  election,  and  choose  representatives  who  should  meet   for  the 
purpose   of  deliberation,  instead  of  the  whole  body.     Mr.  S.  pro- 
ceeded to  explain  his  views  more  at  large,  and  to  answer  objections. 
As  to  filling  the  blank  it  should  only  be  considered  what  number  of 
persons  could  conveniently  meet  and  act  together  without  danger  of 
disorder.    Probably  about  two  thousand  voters  might  be  the  highest 
number,  and  he  should  be  in  favor  of  fixing  at  ten  thousand,  the 
number  of  inhabitants  over  which  the  General  Court  should  have 
authority  to  establish  a  city  government. 

Mr.  Blake  of  Boston  said  that  he  thought  that  the  objection 
which  had  been  expressed  to  the  resolution  arose  from  the  small 
number  with  which  the  blank  had  been  filled,  and  that  there  would 
be  little  opposition  to  the  principle.  It  was  self-evident  that  the 
form  of  town  government,  so  well  adapted  to  the  purposes  of  small 
towns,  was  inapplicable  to  a  large  town  where  there  are  many  in- 
habitants within  a  small  compass.  Boston  now  contains  40.000 
inhabitants,  and  they  may  be  in  20  years  60,000.  How  was  it 
possible  that  such  a  population  should  hold  a  town-meeting  ?  He 
thought  if  the  question  was  put  upon  a  proper  footing  for  trying  the 
principle,  there  would  hardly  be  a  dissentient  voice. 

Mr.  Foster  of  Littleton  said  that  he  was  not  well  informed  on 
this  subject,  and  he  presumed  that  many  other  gentlemen  were  in 
25 


1 94  MASSACHUSETTS    CONVENTION. 

the  same  situation.  He  inquired  whether  a  city  incorporated  with 
the  powers  proposed  in  the  resolution  would  not  exercise  the  power 
of  making  laws  which  would  affect  persons  who  were  not  inhabitants 
of  the  town,  and  whether  inhabitants  of  other  towns  going  into  a  city- 
would  not  be  liable  to  be  ensnared  and  entrapped  by  the  operation 
of  laws  unknown  to  other  parts  of  the  Commonwealth. 

Mr.  Saltonstall  said  he  would  inform  the  Rev.  gentleman  last 
speaking,  that  he  might  go  into  Boston  with  equal  safety  after  it 
was  a  city  government  as  now,  that  they  would  have  no  more  power 
to  make  by-laws  that  might  operate  inconveniently  on  strangers  than 
they  now  have.  They  have  authority  by  statute  to  make  regula- 
tions for  the  general  convenience,  and  so  may  all  our  towns  under 
the  authority  of  the  court  of  sessions,  and  there  are  now  a  great  va- 
riety of  such  regulations.  The  police  regulations  would  probably 
remain  the  same  as  they  now  are.  The  amendment  proposed  was 
not  to  give  the  large  towns  any  peculiar  powers  or  privileges,  but 
only  to  secure  their  enjoyment  of  this  in  common  with  other  towns, 
as  had  been  fully  explained  by  the  gentleman  from  Boston,  (Mr. 
Shaw.)  Mr.  S.  thought  the  blank  ought  not  to  be  filled  with  a  less 
number  than  10,000 — a  smaller  number  would  excite  greater  jealous- 
ies and  be  more  hwidious.  If  reduced  to  5000  there  would  be  many 
applications  from  towns  which  might  think  there  was  some  advan- 
tage in  being  made  cities.  He  did  n«t  know  that  towns  would  de- 
sire to  change  their  government  which  was  peculiar  to  New  England 
— he  hoped  they  would  not.  It  is  a  beautiful  system,  and  had  been 
most  salutary.  The  Commonwealth  from  the  beginning  had  been 
divided  into  these  little  republics,  under  a  kind  of  patriarchal  gov- 
ernment, most  wisely  adapted  to  their  situation,  and  calculated  to 
preserve  the  good  order  of  society.  At  the  same  time,  the  Legisla- 
ture ought  to  have  the  right  to  extend  this  privilege  to  the  second 
town  in  the  Commonwealth.*  There  had  been  a  time  when  the  ex- 
citement was  such  there,  as  to  bring  1800  citizens  together,  equally 
divided  ;  a  day  had  been  passed  in  choosing  a  moderator  ;  the  town 
had  been  kept  together  till  late  in  the  evening,  and  in  one  instance 
there  was  a  degree  of  confusion,  to  which  it  is  unpleasant  to  allude, 
and  which  had  well  nigh  deprived  the  town  of  their  right  at  the 
election  of  governor.  It  may  be  found  convenient  to  vote  in  wards. 
Mr.  S.  did  not  wish  the  government  of  the  town  should  now  be 
changed,  but  it  ought  not  to  be  precluded  by  the  constitution  from  the 
privilege,  as  it  may  become  important  hereafter  to  that,  and  other 
towns,  for  the  same  reasons  that  now  make  it  necessary  in  the  capital. 

Mr.  Weljls  of  Boston  said  if  the  subject  were  understood,  it  would 
be  perceived  that  very  little  additional  power  was  intended  to  be 
conferred  on  the  Legislature  by  this  amendment  to  the  constitution. 
He  referred  the  gentleman  from  Littleton  to  the  sixth  article  of  the 
declaration  of  rights,  in  order  to  remove  his  apprehensions  with  re- 
spect to  exclusive  privileges.  From  that  he  would  perceive  that  it 
would  be  impossible  to  grant  exclusive  privileges  to  the  town  of 
Boston  by  virtue  of  this  amendment.     The  only  reason  for  the  reso- 

*  [Salem.) 


MASSACHUSETTS     CONVENTION.  195 

lution  was  on  account  of  elections  in  large  towns.  He  mentioned 
that  in  this  town,  at  the  town  meeting  |or  the  election  of  delegates, 
the  selectmen  were  employed  from  one  o'clock  in  the  afternoon  to 
ten  o'clock  at  night,  in  assorting  and  counting  the  votes;  and  if 
there  had  been  as  full  a  vote  as  there  is  on  some  occasions,  it  would 
have  required  three  days. 

Mr.  Adams  of  Quincy  said  he  might  be  mistaken,  but  he  had 
thought  there  was  no  difference  of  opinion  with  respect  to  the  gen- 
eral principle  of  the  resolution,  but  only  as  to  filling  the  blank.  The 
inconvenience  attending  the  elections  in  the  large  seaport  towns  was 
so  great,  he  did  not  suppose  any  one  could  have  questioned  the  ex- 
pediency of  giving  the  Legislature  the  power  proposed  by  this  reso- 
lution. Our  towns  were  very  happy  as  at  present  constituted — he 
had  always  loved  the  system  of  their  organization,  and  thought  that 
they  would  not  be  disposed  generally  to  change  their  form  of  gov- 
ernment. When  the  legislature  of  Connecticut  gave  facilities  for 
all  the  towns  becoming  cities,  it  was  inundated  with  applications  for 
that  purpose.  The  legislature  began  to  be  alarmed  and  to  hesitate 
about  granting  charters  of  incorporation.  At  last  a  little  clump  of 
Indians  in  that  state  took  it  into  their  heads  that  they  must  apply 
for  city  powers  and  privileges.  This  convinced  the  legislature  of 
the  impolicy  of  granting  charters  with  so  much  liberality,  and  there 
they  stopped.  If  unlimited  power  were  given  to  the  Legislature  to 
incorporate  cities,  there  might  be  a  great  many  applications,  just  as 
there  were  in  Connecticut.  He  thought  in  filling  the  blank,  the 
number  of  ten  thousand  was  small  enough. 

Mr.  Martin  of  Marblehead  followed  Mr.  Adams.  He  was  op- 
posed to  giving  the  Legislature  power  to  incorporate  cities. 

The  Chairman  told  him  to  confine  his  observations  to  filling  the 
blank. 

Mr.  Richardson  of  Hingham  said  he  should  confine  himself  to 
that,  and  should  be  very  concise.  He  referred  gentlemen  to  the  sixth 
article  of  the  bill  of  rights,  and  asked  what  right  they  had  to  say 
that  a  town  of  ten  thousand  inhabitants  shall  have  city  privileges, 
and  one  of  nine  thousand  shall  not. 

Mr.  Pickman  of  Salem,  in  answer  to  the  gentleman  from  Marble- 
head  (whose  remarks  we  were  not  happy  enough  to  hear)  said  that 
towns  were  already  corporations,  and  that  to  make  cities  would  be 
only  changing  corporations,  not  forming  new  ones.  He  was  attached 
to  the  name  and  system  of  towns,  and  he  should  consent  with  reluct- 
ance to  changing  the  town  which  he  had  the  honor  to  represent,  to 
a  city.  He  thought  the  number  ten  thousand  sufficiently  small  for 
filling  the  blank. 

Mr.  Martin  said  the  Legislature  had  already  remedied  the  evil 
complained  of  by  the  gentleman  from  Salem  (Mr.  Saltonstall)  by 
providing  that  the  moderator  at  town  meetings  should  be  chosen  by 
ballot.     Mr.  M.  was  going  on  upon  the  resolution  generally. 

Mr.  Webster  called  the  gentleman  to  order.  The  question  was 
for  filling  the  blank. 


196  MASSACHUSETTS    CONVENTION. 

The  Chairman  told  him  (Mr.  M.)  that  he  was  out  of  order.  He 
had  already  spoken  once  and  another  gentleman  had  arisen  to  speak. 

Mr.  Abbot  of  Westford  was  opposed  to  filling  the  blank  with  ten 
thousand"  ;  and  to  obviate  the  objection  of  the  gentleman  from  Hing- 
ham,  he  would  propose  that  the  Legislature  should  have  .power  to 
grant  city  powers  and  immunities  to  any  town. 

The  question  was  taken  for  filling  the  blank  with  ten  thousand 
and  carried  in  the  affirmative — 223  to  140. 

The  question  was  now  upon  the  resolution  with  the  blank  filled. 

Mr.  Prince  of  Boston  said  the  gentleman  from  Littleton's  appre- 
hensions of  being  hampered  by  two  opposite  systems  of  laws,  those 
of  the  Legislature  and  those  of  the  city  of  Boston,  were  groundless, 
as  the  Legislature  would  be  composed  for  the  greater  part  of  gentle- 
men from  the  country,  and  could  control  the  city  ordinances. 

Mr.  Nichols  of  South  Reading  moved  to  amend  the  resolution  by 
inserting  a  provision  that  the  by-laws  or  municipal  regulations  of 
city  corporations,  should  be  subject  to  revision  and  repeal  by  the 
Legislature.  His  object  was  to  prevent  powers  being  granted  to  cor- 
porations which  should  not  be  subject  to  recal.  He  made  the  pro- 
position in  consequence  of  the  present  doctrine  respecting  corpora- 
tions. 

Mr.  Wells  thought  the  amendment  superfluous,  as  the  Legisla- 
ture had  the  power  already. 

Mr.  Blake  said  the  amendment  struck  him  agreeably.  The  ques- 
tion of  by-laws  being  repugnant  to  the  laws  of  the  State,  was  at 
present  to  be  decided  by  the  judiciary.  He  thought  it  proper  that 
the  Legislature  should  have  the  power  of  judging  in  such  cases  and 
of  repealing  when  they  thought  fit. 

Mr.  Quincy  of  Boston,  (who  had  risen  at  the  same  time  with  Mr. 
Blake,)  said  that  gentleman  had  anticipated  his  remarks,  and  when 
the  meal  was  well  ground,  he  did  not  care  to  have  it  pass  through 
his  hopper. 

The  amendment  proposed  by  Mr.  Nichols  was  adopted.  The 
question  was  then  taken  upon  the  resolution  as  amended  and  de- 
cided in  the  affirmative — 291  to  24. 

The  remaining  resolution  reported  by  the  select  committee  was 
then  taken  up,  that  it  is  not  expedient  to  make  any  further  provis- 
ion, by  the  constitution,  relative  to  the  substitution  of  affirmations 
for  oaths. 

Mr.  Webster  would  only  state  the  reasons  on  which  the  committee 
acted.  The  question  had  nothing  to  do  with  the  mode  of  receiving 
testimony  in  the  courts  of  law.  All  that  part  of  the  case  rests  with 
the  Legislature  and  the  courts — if  anything  be  wrong,  in  that  par- 
ticular, it  can  be  altered  without  any  amendment  of  the  constitution. 
No  purpose  requires  a  change  of  the  constitution,  except  that  of  giv- 
ing to  persons,  scrupulous  of  taking  oaths,  an  option,  in  respect  to 
offices,  to  make  affirmation.  Two  things  were  to  be  considered — 
first  the  general  principle — second,  the  acknowledged  exception. 
The  general  principle  in  this  government,  and  all  others,  was.  that 


MASSACHUSETTS    CONVENTION.  197 

high  offices  should  be  performed  under  the  responsibility  of  a  relig- 
ious obligation,  or  oath.    The  exception,  in  this  Commonwealth  was. 
that  Quakers  might  take  office,  making  an  affirmation  instead  of  an 
oath.     That  which  is  now  objected  to  the  resolution  recommended 
by  the  committee,  was,  that  it  did  not  provide  such  an  alteration  of 
the  constitution,  as  that  affirmations  might  be  substituted  for  oaths, 
in  all  cases,  at  the  option  of  the  party,  on  his  suggestion  that  he  had 
conscientious  scruples.     The  committee  had  thought  it  not  proper 
to  recommend  this  alteration.     It  appeared  to  them  that  the  question 
did  not  stand  on  the  same  ground  as  in  the  case  of  Quakers.     The 
Quakers  were  a  well  known  sect :  and  it  was  equally  well  known 
that  it  was  a  sentiment  of  that  sect  that  all  swearing  was- unlawful. 
This  was  a  sentiment,  which,  whether  right  or  wrong,  they  had  long 
adhered  to,  and  had  given  full  evidence  of  their  sincerity  in  regard 
to  it.     They  have  suffered  for  it,  and  maintained  it  for  near  two  cen- 
turies, in  the  midst  of  severe  trials,  sometimes  of  great  persecution. 
It  had  therefore  been  supposed  that  it  was  safe  and  proper  to  take 
their  affirmation  instead  of  an  oath.     If  a  man  was  a  Quaker,  that 
fact  alorfc  furnished  evidence,  in  the  common  understanding  of  so- 
ciety, that  he  was  really  and  truly  scrupulous  about  taking  oaths — 
because  his  religious  sect  was  known  to  be  scrupulous  in  that  re- 
spect.    But- the  case  stood  much  otherwise  with  an  individual  not 
belonging  to  that  sect,  and  therefore  giving  no  evidence  of  his  scru- 
ples but  his  own  declaration.     This  declaration  might  be  true,  in- 
deed ;  and  it  might  be  false  ; — and  how  was  it  to  be  decided  ?     In 
short,  it  seemed  contradictory  and  absurd  to  prescribe  oaths  of  office, 
and  then  leave  it  to  the  uncontrolled  option  of  the  party  to  take  the 
oath   or  not.     It   was  possible   that  the  existing   provision   might 
bear  hard  on  here  and  there  an   individual.     He  regretted  it — but 
either  oaths  should  not  be  required  at  all,  or  they  should  not  be  dis- 
pensed with,  at  the  mere  pleasure  of  the  party.     This  would  be 
playing  fast  and  loose  on  a  very  serious  subject.     It  appeared  to  the 
committee,  on  the  whole,  that  the  exception  in  favor  of  Quakers 
stood  on  distinct  and  particular  grounds ;  and  that  there  was  no 
ground  on  which  to  support  an  alteration  of  the  constitution  for  the 
purpose  of  making  other  exceptions.     As  to  testimony  in  the  courts, 
that  can  be  regulated  elsewhere.     The  present  question   merely  re- 
spects qualification  for  office  ;  and  the  committee  were  of  opinion 
that  no  new  provision  was  necessary. 

Mr.  Baldwin  of  Boston  deemed  it  his  indispensable  duty  to  show 
his  dissent  from  the  opinion  expressed  b'y  the  gentleman  who  last 
spoke.  He  could  not  see  why  one  denomination  of  Christians  should 
be  favored  more  than  another.  Were  the  Friends  the  only  people 
to  be  trusted  ?  He  admired  the  virtue  and  simplicity  of  their  char- 
acter, but  other  persons  were  equally  sincere  in  their  scruples  on  this 
subject.  If  elected  to  office,  a  man  might  decline  taking  an,  oath, 
by  declining  the  office,  but  it  is  not  so  in  courts  of  justice.  An  af- 
firmation was  an  appeal  to  God,  without  coming  under  the  name  of 
swearing.  He  had  religious  scruples  himself  about  taking  oaths, 
and  had  not  taken  one  these  forty  years. 


198  MASSACHUSETTS     CONVENTION. 

Mr.  Foster  thought  it  would  be  nugatory  to  have  any  oaths  if 
every  body  was  allowed  to  substitute  affirmations  when  they  pleased. 
He  said  he  did  not  consider  an  affirmation  as  an  appeal  to  God,  but  a 
promise  by  which  a  person  subjected  himself  to  human  penalties  in 
case  he  falsified  the  truth. 

Mr.  Newhall  of  Lynnfield  moved  as  an  amendment  that  affirma- 
tions should  be  substituted  for  oaths  in  all  cases  when  the  party  shall 
have  religious  scruples  about  taking  oaths. 

Mr.  Nichols  was  in  favor  of  this  amendment.  He  said  it  was  not 
generally  known  that  some  other  denominations  besides  Quakers 
had  religious  scruples  about  taking  oaths.  He  considered  the  requi- 
sition repugnant  to  the  declaration  of  rights. 

Mr.  Webster  wished  to  bring  gentlemen  back  to  the  question. 
It  was  necessary  to  see  what  were  the  existing  provisions  on  this 
subject.  He  said  the  regulation  of  oaths,  except  those  of  office, 
which  had  been  already  decided  upon  by  the  committee,  were  the 
subject  of  legislation,  and  the  Legislature  had  full  power  in  relation 
to  them.  Mr.  W.  made  other  remarks  showing  the  inexpediency  of 
adopting  the  amendment.  * 

Mr.  Enoch  Mudge  of  Lynn  said  he  had  no  such  scruples  himself, 
but  many  in  Lynn  had.  He  said  the  Quakers  themselves  disliked 
to  see  that  name  in  the  constitution.  They  wished  to  have  the 
principle  of  substituting  affirmations  extended  to  all  persons. 

The  question  was  taken  on  Mr.  Newhall's  amendment,  and  de- 
termined in  the  negative — 86  to  278. 

Mr.  Dana,  the  chairman  of  the  committee  of  the  whole,  being  one 
of  the  electors  of  president  and  vice  president,  and  the  hour  appointed 
for  their  meeting  having  arrived,  stated  the  necessity  of  his  with- 
drawing from  the  chair,  and  Mr.  Varnum  was  requested  by  the  pres- 
ident to  take  the  chair  in  his  place. 

The  question  on  the  resolution  reported  by  the  select  committee 
being  stated, 

Mr.  Williams  of  Beverly  moved  to  amend  it,  by  substituting  a  res- 
olution that  the  constitution  be  so  altered,  as  that  all  persons  con- 
scientiously scrupulous  of  taking  an  oath,  shall  in  cases  when  an 
oath  is  required,  be  allowed  to  affirm  upon  the  pains  and  penalties  of 
perjury,  provided  that  the  persons  administering  the  oath  or  affirma- 
tion shall  be  authorized  to  question  them  respecting  the  sincerity  of 
their  scruples. 

Mr.  Webster  observed  that  this  proposition  would  take  away  all 
right  from  Quakers  and  put  it  in  the  power  of  the  magistrate  or  other 
person  administering  the  oath  or  affirmation  to  compel  any  one  to 
swear  or  not  according  to  his  discretion  or  whim.  That  it  put  oaths 
of  office  on  the  same  ground  as  other  oaths,  and  it  enabled  the  per- 
son appointed  to  administer  such  oaths  to  deprive  a  man  of  scrupu- 
lous conscience  of  the  office  to  which  he  might  be  elected.  That 
as  to  oaths  before  courts  of  justice,  it  was  nugatory. 

The  question  was  taken  upon  Mr.  Williams's  amendment  and 
lost   and  after  a  few  observations  by  Mr.  Nichols  in  opposition  to 


MASSACHUSETTS    CONVENTION.  199 

the  resolution  the  question  was  taken  upon  the  resolution  and  decid- 
ed in  the  affirmative — 298  to  29. 

On  motion  of  Mr.  Webster,  the  committee  rose  and  reported  their 
agreement  to  the  two  resolutions. 

Bill  of  Rights. — Mr.  Bliss,  from  the  committee  on  the  first   part 

of  the  constitution,  offered  the  following  report  : 

Commonwealth  of  Massachusetts. 

In  Convention,  December  6,  1820. 

The  committee  to  whom  was  referred  so  much  of  tf!e  constitution  of  this  Common- 
wealth as  is  contained  in  the  preamble  and  declaration  of  rights,  to  take  into  consid- 
eration the  propriety  and  expediency  of  making  any,  and  if  any,  what  alterations  or 
amendments  therein,  and  report  thereon,  respectfully  report : 

That  the  title  and  preamble  of  the  constitution,  as  it  stands  in  the  original,  is 
proper  and  suitable,  and  ought  to  remain  unaltered  ;  and  that  the  declaration  of  rights 
contains  a  suitable  and  apt  enumeration  of  the  rights  of  the  people  and  of  the  great 
principles  of  civil  liberty. 

The  committee  do  not  think  it  expedient  that  any  essential  alterations  should  be 
made  in  any  of  the  articles,  except  the  third  ;  but  as  it  is  possible  that  some  expres- 
sions in  them  may  hereafter  be  construed  as  interfering  with  the  constitution  and 
laws  of  the  United  States,  they  have  thought  it  proper  to  recommend  such  an  altera- 
tion in  the  phraseology  as  may  remove  all  doubt. 

They  also  think  that  the  word  "  subject,"  where  it  occurs  in  said  declaration, 
ought  to  be  changed  for  a  word  more  consistent  with  the  feelings  of  freemen. 

As  to  the  third  article  in  said  declaration,  while  the  committee  are  generally 
agreed,  that  the  great  privilege  of  religious  freedom,  and  the  support  of  public  wor- 
ship, and  public  religious  institutions  are  so  essential  to  the  well  being  of  society 
that  they  hold  a  distinguished  place  in  that  declaration,  they  have  found  no  small 
difficulty  in  settling  the  mode  in  which  the  individual  might  be  secured  in  the  enjoy- 
ment of  the  right  of  selecting  the  place  where  he  would  attend  public  worship,  and 
of  appropriating  to  the  teacher  where  he  attends  whatever  he  is  obliged  to  pay,  and 
at  the  same  time  securing  to  the  community  the  contribution  of  all  the  citizens  to  an 
object  so  important  as  that  of  public  worship.  They  have  endeavored  so  to  modify 
that  article  as  to  attain  those  ends,  and  respectfully  submit  the  following  resolutions. 
By  order  of  the  committee,     m  GEORGE  BLISS,  Chairman. 

Resolved,  That  it  is  expedient  that  the  second  and  eleventh  articles  of  said  decla- 
ration be  amended  by  substituting  the  word  "citizen"  instead  of  the  word 
"  subject." 

Resolved,  That  it  is  expedient  that  the  12th,  13th  and  14th  articles  be  amended  by 
substituting  the  word  "  person"  for  the  word  "subject"  in  said  articles. 

Resolved,  That  it  is  expedient  that  the  third  article  in  said  declaration  should  be 
amended  by  substituting  for  the  word  "  or  "  immediately  after  the  words  "  bodies 
politic,"  the  words  "  and,"  and  by  adding  the  words  "  incorporated  and  unincorpo- 
rated." 

Resolved,  That  it  is  expedient  that  the  same  article  be  further  amended  by  substi- 
tuting the  word  "  Christian  "  for  the  word  "  protestant." 

Resolved,  That  all  that  part  of  said  article  which  invests  the  Legislature  with 
power  to  enjoin  an  attendance  on  public  worship,  ought  to  be  annulled,  and  be  holden 
no  longer  obligatory. 

Resolved,  That  with  the  above  amendments  and  alterations  so  much  of  the  said 
article  as  declares  the  importance  of  public  worship  and  public  instruction,  and  en- 
joins upon  the  Legislature  the  maintenance  thereof,  and  also  secures  to  societies  the 
right  of  electing  their  own  teachers,  and  which  is  hereto  subjoined,  ought  to  be  re- 
tained as  a  part  of  said  article  : 

"  As  the  happiness  of  a  people  and  the  good  order  and  preservation  of  civil  gov- 
ernment essentially  depend  upon  piety,  religion  and  morality;  and  as  these  cannot 
be  generally  diffused  through  a  community,  but  by  the  institution  of  the  public  wor- 
ship of  God,  and  of  public  instructions  in  piety,  religion,  and  morality  :  Therefore, 
to  promote  their  happiness,  and  to  secure  the  good  order  and  preservation  ot  their 
Government,  the  people  of  this  Commonwealth  have  a  right  to  invest  their  Legisla- 
ture with  power  to  authorize  and  require,  and  the  Legislature  shall  from  time  to 


200  MASSACHUSETTS    CONVENTION. 

time  authorize  and  require,  the  several  towns,  parishes,  precincts,  and  other  bodies 
politic,  and  religious  societies,  incorporated  or  unincorporated,  to  make  suitable  pro- 
vision, at  their  own  expense,  for  the  institution  of  the  public  worship  of  God,  and 
for  the  support  and  maintenance  of  public  Christian  teachers  of  piety,  religion  and 
morality,  in  all  cases  where  such  provision  shall  not  be  made  voluntarily. 

"  Provided,  notwithstanding,  that  the  several  towns,  parishes,  precincts,  and  other 
bodies  politic  and  religious  societies,  incorporated  or  unincorporated,  shall  at  all 
times  have  the  exclusive  right  of  electing  their  public  teachers  and  of  contracting 
with  them  for  their  maintenance." 

Resolved,  That  it  is  expedient  that  all  that  part  of  said  third  article  which  relates  to 
the  right  of  the  citizen  to  erect  the  teacher  to  whose  use  he  will  appropriate  the 
money  he  shall  be  holden  to  pay.  and  which  immediately  succeeds  the  foregoing, 
beginning  with  the  words  "  and  all  moneys  "  and  ending  with  the  word  "  raised," 
should  be  annulled,  and  the  following  substituted  in  its  place,  to  wit : — "  And  all 
moneys  paid  by  the  citizen  to  the  support  of  public  worship  and  of  the  public  teachers 
aforesaid,  shall,  if  he  require  it,  be  applied  to  the  support  of  public  worship  where  he 
shall  attend,  or  the  public  teacher  or  teachers  on  whose  instruction  he  attends, 
whether  of  a  society  incorporated  or  unincorporated ;  provided  there  be  any  on 
whose  instructions  he  attends,  otherwise  it  shall  be  paid  towards  the  support  of  public 
worship  and  of  the  teacher  or  teachers  of  the  parish  or  precinct  in  which  the  said 
moneys  are  raised.  Provided,  however,  That  any  inhabitant  of  any  parish  or  member 
of  any  religious  society  whether  incorporated  or  not,  may  at  all  times  unite  himself 
to  any  society  within  this  Commonwealth,  incorporated  for  the  support  of  public 
worship,  and  having  first  obtained  the  consent  of  such  society  with  which  he  shall  so 
unite  himself — and  having  procured  a  certificate  signed  by  the  clerk  of  such  society 
to  which  he  hath  so  united  himself,  that  he  hath  become  a  member  thereof,  and  filed 
the  same  in  the  office  of  the  clerk  of  such  parish  or  society  to  which  he  hath  belonged 
and  in  which  said  moneys  are  raised,  he  shall  not,  while  he  shall  remain  a  member 
thereof,  be  liable  to  be  taxed  for  any  moneys  raised  after  the  filing  of  such  certificate, 
for  the  support  of  public  worship,  or  of  any  such  public  teacher,  except  in  the  society 
of  which  he  hath  so  become  a  member ;  but  shall  be  holden  to  be  taxed  in  the  society 
with  which  he  so  united  himself  until  he  shall  cease  to  be  a  member  thereof.  Pro- 
vided, also,  that  whenever  any  number  of  persons  not  less  than  twenty,  shall  have 
associated  themselves  together  for  the  purpose  of  maintaining  public  worship,  and 
public  religious  instruction,  and  shall  have  made  and  signed  an  agreement  in  writing 
under  their  hands,  declaring  such  purpose,  and  shall  have  caused  a  copy  of  such 
agreement  to  be  filed  in  the  office  of  the  clerk  of  the  town  or  towns  to  which  they 
shall  respectively  belong, — they  shall  in  regard  to  the  support  of  public  worship,  and 
the  maintenance  of  public  teachers,  have  all  the  powers,  and  be  subject  to  all  the 
duties,  of  parishes  within  this  Commonwealth — and  all  persons  so  associated  while 
they  continue  members  of  such  society,  shall  not  be  liable  to  be  taxed  elsewhere  for 
the  support  of  public  worship,  or  of  any  public  teacher  of  piety,  religion  and  morality. 
And  any  person  may  become  a  member  of  such  society,  so  united,  and  certified  as 
aforesaid,  if  such  society  shall  consent  thereto,  and  shall  not,  after  he  shall  have  pro- 
cured and  filed  in  the  office  of  the  clerk  of  the  town  to  which  he  shall  have  belonged, 
a  certificate  signed  by  a  committee  or  the  clerk  of  such  society  of  which  he  shall  so 
have  become  a  member,  that  he  has  become  a  member  of  such  society,  and  attends 
public  worship  with  them,  shall  not  be  liable  to  be  taxed  elsewhere,  for  any  money 
raised  after  he  shall  have  filed  such  certificate,  so  long  as  he  continues  a  member 
thereof,  and  shall  attend  public  worship  with  such  society,  and  shall  while  he  is  a 
member  thereof  be  holden  to  contribute  to  the  support  of  public  worship  and  of  the 
public  teacher  or  teachers  in  said  society. 

Resolved,  That  it  is  expedient  that  all  the  residue  of  the  said  third  article  and 
which  is  in  the  following  words,  "  and  every  denomination  of  Christians  demeaning 
themselves  peaceably  and  as  good  citizens  shall  be  equally  under  the  protection  of 
the  law ;  and  no  subordination  of  any  one  sect  or  denomination  to  another  shall  ever 
be  established  by  law,"  substituting  the  word  "  citizens"  instead  of  the  words  "sub- 
jects of  the  Commonwealth,"  ought  to  remain  as  a  part  of  said  third  article. 

Resolved,  That  it  is  expedient  that  the  twelfth  article  in  said  declaration  should  be 
amended  by  varying  the  expressions  from  the  words  "  face  to  face  "  to  the  end  of 
the  sentence,  as  follows,  to  wit :  "  and  in  criminal  prosecutions  to  be  fully  heard  by 
himself  and  his  counsel." 


MASSACHUSETTS    CONVENTION.  201 

Resolved,  That  it  is  expedient  that  the  seventeenth  article  of  said  declaration 
should  be  amended  by  adding  after  the  word  "Legislature"  therein,  the  words,  "and 
in  conformity  to  the  constitution  of  the  United  States." 

Resolved,  That  it  is  expedient  that  the  twenty-third  article  should  be  amended  by 
annulling  or  expunging  therefrom  the  word  "Legislature"  at  the  end  of  said  article. 

Resolved,  That  it  is  expedient  that  the  twenty-seventh  article  thereof,  should  be 
amended  by  substituting  the  word  "  law  "  for  the  words  "  the  Legislature." 

Resolved,  That  it  is  expedient  that  the  twenty-eighth  article  of  said  declaration 
should  be  amended  by  substituting  the  words  "Legislative  authority"  for  the  words 
"  authority  of  the  Legislature." 

On  motion  of  Mr.  Bliss,  the  report  was  committed  to  a  commit- 
tee of  the  whole,  assigned  to  Thursday  at  11  o'clock,  and  ordered 
to  be  printed. 

Lieutenant  Governor  and  Council. — On  motion  of  Mr.  Blake, 
the  Convention  went  into  committee  of  the  whole  on  the  unfinished 
business  of  Saturday,  it  being  the  report  of  the  select  committee  on 
that  part  of  the  constitution  which  relates  to  the  lieutenant  governor 
and  council. 

The  question  was  stated  on  the  resolution  offered  by  Mr.  Morton, 
on  Saturday,  to  strike  out  the  third  resolution  reported  by  the  select 
committee,  and  to  insert  a  provision  that  the  constitution  be  so 
altered  that  the  council  be  chosen  by  the  people. 

Mr.  Morton  withdrew  this  resolution,  which,  he  said,  did  not  em- 
brace his  original  ideas  on  the  subject,  and  offered  a  substitute. 

Mr.  Dearborn  of  Roxbury  rose  to  offer  three  resolutions,  which, 
if  accepted,  would  serve  as  a  substitute  for  that  under  consideration 
and  that  reported  by  the  select  committee.  The  purport  of  these 
resolutions  was,  to  strike  out  that  part  of  the  constitution  which 
directs  that  nine  counsellors  shall  be  appointed — so  to  amend  that 
part  relating  to  the  lieutenant  governor  as  to  provide  that  he  shall 
be  president  of  the  senate,  that  he  may  enter  into  debate  when  the 
senate  are  in  committee  of  the  whole,  have  a  casting  vote 
when  the  senate  are  equally  divided,  and  when  the  two  houses 
are  assembled  in  joint  body.  And  that  if  the  offices  of 
governor  and  lieutenant  governor  should  become  vacant,  the 
president  of  the  senate  pro-tempore,  or,  if  there  should  be  no  such 
officer,  the  speaker  of  the  house  of  representatives,  shall  act  as  gov- 
ernor. He  read  also  two  other  resolutions,  which  he  should  offer  at 
another  time,  if  these  should  be  accepted ;  providing  that  appoint- 
ments instead  of  being  made  by  the  governor  and  council,  should 
be  made  by  the  governor  and  senate ;  and  that  all  duties  now  re- 
quired of  the  governor  and  council,  should  be  performed  by  the 
governor  and  senate. 

It  being  objected  that  it  would  not  be  in  order  to  receive  these 
resolutions,  Mr.  Morton. withdrew  his  motion,  and  those  offered  by 
Mr.  Dearborn  were  read. 

Mr.  Bliss  objected  that  it  was  not  in  order  to  receive  these  prop- 
ositions. The  committee  had  already  determined  all  these  ques- 
tions relating  to  lieutenant  governor,  and  all  relating  to  the  council 
had  been  once  determined ;  but  the  third  resolution  and  that  only 

26 


202  MASSACHUSETTS    CONVENTION. 

had  been  reconsidered.  It  was  proper  to  discuss  that  only,  and  it 
was  clearly  contrary  to  the  rules  and  orders,  that  propositions  em- 
bracing all  these  subjects  should  be  received. 

The  Chairman  said  it  would  be  impracticable  to  introduce  these 
propositions  in  this  manner — to  propose  resolutions  which  shall  do 
away  what  has  been  acted  upon  by  the  committee  of  the  whole. 
The  gentleman  would  have  an  opportunity  to  bring  forward  his 
proposition  in  Convention,  and  it  might  then,  if  necessary,  be  referred 
to  a  committee  of  the  whole. 

Mr.  Morton  renewed  his  last  motion.  It  was  to  substitute  for 
the  third  resolution  of  the  select  committee,  one  which  should  direct 
that  counsellors  shall  be  annually  chosen  by  the  people  by 

ballots,  distinct  from  those  given  for  senators,  in  such  convenient 
districts  as  shall  be  herein  provided  for. 

Mr.  Parker  of  Boston  wished  that  gentlemen  who  submit  prop- 
ositions to  the  committee,  might  have  an  opportunity  of  explaining 
their  reasons  in  support  of  their  motions.  In  relation  to  this  reso- 
lution, the  committee  ought  to  'be  informed  how  it  was  to  be 
carried  into  effect.  It  proposed  that  counsellors  should  be  elected 
by  the  people.  All  this  was  very  good,  but  the  question  is  as  to  the 
form  in  which  this  shall  be  done.  They  were  as  much  chosen  by 
the  people  when  it  was  done  by  their  deputies  in  convention  of  the 
two  houses  of  the  Legislature,  as  if  it  was  done  in  town  meeting.  But 
it  must  be  done  in  districts.  How  were  those  to  be  formed  ?  He 
could  see  no  mode  which  did  not  present  insuperable  difficulties. 
The  population  of  the  Commonwealth  was  about  five  hundred  thou- 
sand. The  districts  must  be  formed  with  some  degree  of  equality, 
and  seven  districts  must  be  formed,  each  containing  a  population  of 
about  seventy  thousand  souls.  Boston  contains  forty  thousand. 
What  part  of  the  State  will  you  take  to  make  up  the  rest  of  the  dis- 
trict ?  Will  you  take  the  county  of  Norfolk,  or  a  part  of  Middlesex, 
that  the  voice  of  the  people  there  may  be  merged  in  giving  a  coun- 
sellor to  the  town  of  Boston  ?  Worcester  would  be  about  large  enough 
for  a  district — the  old  county  of  Hampshire  for  another  ;  but  Berkshire 
is  too  small.  Shall  the  established  lines  of  Worcester  and  Hampshire 
be  broken  up  ?  or  will  you  go  down  to  Cape  Cod  and  tack  the 
county  of  Barnstable  to  Berkshire?  He  proceeded  to  argue  that  it 
was  not  an  interference  with  popular  rights — referred  to  the  recent 
example  of  Maine,  and  the  practice  here  for  forty  years — urged  the 
probability  that  so  counsellors  well  qualified  to  perform  the  various 
duties  would  be  elected — and  recurred  again  to  the  incalculable  dif- 
ficulties that  must  be  encountered  in  forming  the  districts. 

Mr.  Morton  supported  his  motion.  He  said  that  it  was  expected 
that  the  old  principle  of  electing  counsellors  and  senators  together 
would  be  abolished,  for  the  principle  had  been  departed  from  in 
practice.  On  that  principle  the  counsellors  were  elected  by  the 
people.  The  committee  who  have  reported  an  amendment  to  that 
part  of  the  constitution  which  relates  to  the  choice  of  senators,  have 
said  nothing  about  counsellors.     The  people  are  therefore  to  be  de- 


MASSACHUSETTS    CONVENTION.  203 

prived  of  their  voice  in  the  election.  The  choice  by  convention  of 
the  two  houses,  he  considered  a  farce.  The  practice  had  been  to 
elect  nine  counsellors  who  had  already  pledged  themselves  in  sup- 
port of  particular  measures.  The  people  who  adopted  the  constitu- 
tion had  no  idea  that  the  principle  of  electing  counsellors  would  be 
so  misused. 

Mr.  Leland  of  Roxbury  thought  that  the  mode  proposed  would 
have  a  salutary  effect  so  far  as  it  tended  to  bring  into  the  council 
men  of  different  political  opinions,  but  he  thought  that  there  would 
be  insuperable  difficulties  in  carrying  it  into  effect.  Counties  be- 
tween whom  jealousies  existed,  must  be  united ;  a  caucus  nomina- 
tion would  be  necessary.  He  was  in  favor  of  an  election  by  the 
people,  but  this  proposition  he  thought  visionary  and  the  worst  of 
all  the  modes  proposed. 

Mr.  Blake  did  not  entirely  approve  of  this  proposition,  but  he 
thought  it  the  best  that  had  been  made.  He  thought  it  unneces- 
sary to  take  the  power  of  election  from  the  people.  It  was  an  inno- 
vation which  he  would  never  consent  to.  He  would  not  alter  one 
feature  or  lineament  of  the  constitution  that  should  subtract  from 
the  powers  of  the  people.  There  were  solid  objections  to  the  choice 
by  the  Legislature.  The  office  of  counsellor  had  important  duties  ; 
it  was  next  in  rank  to  that  of  lieutenant  governor.  All  appoint- 
ments to  office  were  made  only  by  approbation  of  the  council. 
They  had  besides  great  and  various  duties,  and  it  was  a  mistaken 
idea  that  men  who  had  become  incapable  of  active  services,  and 
whose  faculties  were  decayed,  should  be  stowed  away  in  the  coun- 
cil, never  more  to  be  heard  of.  If  the  power  of  election  were  taken 
from  the  people,  there  were  insuperable  objections  to  giving  it  to 
the  Legislature.  They  were  the  last  body  that  ought  to  possess  t. 
They  were  unfit  to  have  much  to  do  with  elections.  It  is  their 
proper  duty  to  make  laws  and  not  to  elect  officers,  except  in  cases 
where  it  is  indispensable.  The  gentleman  from  Roxbury  had  ob- 
jected to  caucuses.  A  legislative  caucus  was  the  worst  of  all. 
Members  of  the  Legislature  were  subject  to  undue  influences.  A 
reverend  gentleman  had  said,  lead  us  not  into  temptation ;  if  you 
give  this  power  to  the  Legislature,  you  not  only  lead  them  into 
temptation,  but  deliver  them  over  to  evil.  It  was  improper  to  unite 
the  duties  of  making  laws  and  electing  to  offices.  There  was  an 
incongruity  in  giving  the  choice  of  governor  and  of  the  council  to 
different  bodies.  They  both  constituted  but  one  branch  of  the  gov- 
ernment. He  was  not  strenuous  for  preserving  the  office  of  coun- 
sellor. But  if  it  was  preserved,  they  ought  to  be  elected  by  the 
people,  and  there  was  no  alternative  but  to  choose  them  by  districts. 
There  were  difficulties,  but  they  were  not  insurmountable.  He 
concluded  by  moving  a  resolution  that  it  is  expedient  and  proper 
so  to  amend  the  constitution  as  to  reduce  the  number  of  counsellors 
from  nine  to  seven. 

The  Chairman.     That  resolution  has  already  passed. 

Mr.  Blake  then  moved  to  amend  the  resolution  of  the  select  com- 


204  MASSACHUSETTS    CONVENTION. 

mittee,  so  as  to  declare  that  it  is  not  expedient  to  make  any  altera- 
tion in  the  constitution  in  regard  to  the  election  of  counsellors. 

Mr.  Adams  was  opposed  to  the  amendment  offered  by  Mr.  Blake. 
He  would  much  rather  vote  for  an  annihilation  of  the  council. 
What  is  the  council  ?  It  is  an  essential  part  of  the  executive.  The 
governor  is  only  primus  inter  pares.  Every  member  has  an  equal 
vote  with  the  governor  and  lieutenant  governor.  The  executive 
consists  of  eleven  heads.  Who  are  to  appoint  nine  or  ten  of  these  ? 
The  lieutenant  governor  is  appointed,  and  rightly,  by  the  people. 
But  nine  are  not  appointed  by  the  people.  Returning  forty  men 
out  of  whom  they  are  to  be  chosen,  is  not  expressing  the  voice  of 
the  people.  '  Intermixing  them  with  forty  men  chosen  for  senators, 
is  no  election  by  the  people  at  all.  His  objection  was  founded  on 
a  fundamental  principle  of  a  free  government.  It  was  essential  that 
the  executive  and  legislative  departments  should  be  distinct  and  in- 
dependent of  each  other.  Can  any  one  say  that  they  are  distinct 
and  independent,  when  the  Legislature  have  the  power  to  appoint 
nine  members  in  opposition  to  the  governor — to  obstruct  and  em- 
barrass his  measures  ?  He  did  not  say  that  this  had  been  done,  but 
it  might  be  done.  If  the  council  were  to  be  appointed  in  the 
manner  in  which  they  used  to  be,  it  would  be  necessary  to  take 
from  them  all  power  of  controlling  the  governor,  and  to  leave  the  re- 
ponsibility  with  him.  The  two  houses  of  the  Legislature  make  an 
election  of  nine  out  of  forty  to  form  a  part  of  the  executive.  It  is 
such  an  intermingling  of  powers  as  no  free  government  can  long  live 
under.  If  there  have  been  no  inconveniences  heretofore,  they  will 
arise  as  the  country  increases — there  will  be  more  ambitious  men, 
intrigues,  plots,  and  caucuses.  He  was  for  districting  the  Common- 
wealth and  giving  the  choice  to  the  people.  It  is  only  by  giving 
to  the  governor  a  decisive  authority  that  he  can  administer  with 
success.  He  had  known  no  governor  whom  the  people  have 
chosen  that  was  not  worthy  of  his  place.  He  had  had  great  expe- 
rience of  the  difficulties  of  checks  upon  the  executive  power  in  the 
government  of  the  United  States.  The  power  given  to  the  senate 
would  be  the  total  ruin  of  the  constitution  of  the  United  States,  or 
it  must  be  amended. 

Mr.  Blake  withdrew  his  amendment,  and  the  question  returned 
upon  the  proposition  of  Mr.  Morton. 

Mr.  Stone  of  Stow  and  Boxborough  said  it  was  the  design  of  the 
founders  of  the  constitution,  that  the  people  should  have  a  voice  in 
the  choice  of  counsellors.  It  was  true  that  if  the  choice  was  by  the 
Legislature  it  emanated  indirectly  from  the  people  ;  but  this  was 
an  innovation  and  a  subversion  of  republican  principles.  He  an- 
swered the  objection  that  the  people  were  not  competent  to  choose 
in  large  districts.  The  same  objection  would  lie  against  the  elec- 
tion of  governor  and  senators.  Yet  the  people  choose  judiciously. 
He  was  opposed  to  a  general  ticket,  because  all  would  be  of  one  po- 
litical opinion,  and  the  minority  would  not  be  represented.     By  dis- 


MASSACHUSETTS    CONVENTION.  205 

tricts,  all  parts,  all  interests,  and  the  different  political  feelings 
would  be  represented. 

Mr.  Foster  moved  that  the  committee  'rise.  Negatived,  178 
to  182. 

Mr.  Bliss  spoke  at  some  length  in  favor  of  the  amendment.  He 
saw  no  difficulty  in  forming  districts — no  objection  to  annexing 
counties. 

Mr.  Phillips  spoke  against  the  amendment. 

The  committee  rose,  reported  progress,  and  had  leave  to  sit  again. 

Leave  of  absence  was  granted  to  Mr.  Noyes  and  Mr.  Hunt. 

Mr.  Phelps  of  Belchertown  was  appointed  in  the  place  of  Mr. 
Hunt,  on  the  committee  on  leave  of  absence. 

It  was  ordered  that  the  standing  hour  of  meeting  in  the  morning, 
should  be  9  o'clock.     Adjourned. 


Thursday,  December  7. 

The  Convention  met  at  9  o'clock,  and  attended  prayers  offered 
by  the  Rev.  Mr.  Palfrey.     The  journal  having  been  read, 

On  motion  of  Mr.  Webster,  the  Convention  took  into  considera- 
tion the  resolutions  reported  by  the  committee  on  that  part  of  the 
constitution  which  relates  to  oaths,  subscriptions,  &c,  agreed  to  in 
committee  of  the  whole. 

Mr.  Tuckerman  of  Chelsea  moved  to  amend  the  resolution  in 
such  manner  that  persons  elected  to  the  office  of  governor,  lieuten- 
ant governor,  senator  or  representative,  should,  before  entering  upon 
the  duties  of  the  office,  make  and  subscribe  the  following  declara- 
tion : 

"  I,  A.  B.,  do  declare  that  I  believe  in  the  Christian  religion." 

Mr.  Saltonstall  of  Salem  observed  that  he  had  intended,  as  he 
knew  some  others  had,  to  address  the  Convention  when  the  subject 
was  before  them,  but  was  prevented  by  the  symptoms  of  impatience 
expressed.  He  had  since  thought  seriously  upon  it,  and  believed 
his  duty  would  not  permit  his  silence,  though  silence  is  so  great  a 
virtue  in  this  Convention.  It  was  one  upon  which  he  could  not 
sacrifice  his  private  opinion  to  others,  however  he  might  respect  and 
venerate  them.  As  to  the  right  of  a  Christian  community  to  require 
their  rulers  to  profess  their  belief  in  the  common  religion  of  the 
State — it  rests  on  the  same  basis  as  the  right  to  require  any  other 
qualification  for  office.  The  great  object  of  civil  society  is  the  pro- 
tection of  the  life,  liberty  and  property  of  the  members,  and  "  to 
furnish  them  with  the  means  of  enjoying  in  tranquillity  their  nat- 
ural rights  and  the  blessings  of  life  ;  "  and  those  entering  into  it 
have  a  right  to  agree  upon  such  a  system  of  government  as  in  their 
opinion  will  best  promote  these  great  objects.  All  are  bound  by 
their  decision — it  rests  on  the  assent  of  all,  express  or  implied.  The 
people  of  this  Commonwealth  are  a  voluntary  association,  and  Save 


206  MASSACHUSETTS    CONVENTION. 

a  right  to  adopt  such  regulations  as  they  think  fit,  otherwise  they 
are  a  voluntary  society  acting  against  their  will.  They  have  a 
right  to  decide  what  offices  they  will  have,  and  what  shall  be  the 
qualifications  for  them.  No  objection  can  be  made  to  the  right  of 
requiring  this  declaration,  which  will  not  lie  against  every  other 
qualification.  Mr.  S.  then  proceeded  to  illustrate  it  by  referring 
to  the  qualification  of  property,  age,  and  residence  required  in  the 
governor.  All  these  rest  on  the  same  principle — the  right  of  soci- 
ety to  establish  such  rules  as  in  their  opinion  will  best  promote  the 
great  objects  of  its  institution.  Why  then  have  not  a  Christian  com- 
munity a  right  to  require  this  declaration  ?  Will  it  not  give  some 
additional  security  ?  What  is  the  religion  which  they  are  required  to 
profess  ?  It  is  too  late  to  dispute  its  good  tendency  on  rulers  and 
people.  It  teaches  rulers  "to  rule  in  the  fear  of  God."  This  is  a 
mere  civil  regulation,  and  was  not  intended  to  interfere  with  the 
rights  of  conscience  and  of  private  judgment.  It  abridges  no  man 
of  his  religious  liberty.  In  every  community  there  is  a  large  class 
who  are  left  in  the  enjoyment  of  their  civil  rights,  who  have  yet  no 
right  to  political  privileges ;  they  cannot  be  elected  to  office.  The 
great  object  of  society  is  not  the  right  of  being  rulers,  but  of  secu- 
rity against  wrong.  Much  of  the  objection  to  this  test,  as  it  is  im- 
properly called,  arises  from  confounding  private  judgment  and  the 
qualifications  which  the  constitution  creates  for  certain  offices.  To 
punish  men  for  believing  or  not  believing  is  cruelty ;  but  to  annex 
conditions  to  office,  is  perfectly  justifiable,  and,  indeed,  necessary. 
Mr.  S.  also  argued  the  right  from  the  circumstance  of  its  long  con- 
tinuance. It  is  said  government  have  nothing  to  do  with  opinions. 
The  people  always  elect  their  officers  with  a  view  to  their  opinions, 
and  why  have  not  the  majority  in  framing  a  government,  the  right 
to  agree  that  they  will  not  elect  certain  magistrates  unless  they  will 
declare  their  belief  in  the  Christian  religion  ?  If  the  people  have 
this  right,  then  it  is  a  mere  question  of  expediency — it  is  found  in 
the  constitution,  and  shall  it  now  be  preserved  or  expunged  ?  But 
why  expunge  it  ?  What  evil  has  it  done  ?  It  ought  not  to  be  ex- 
punged unless  this  is  clearly  shown.  Has  it  deprived  the  Common- 
wealth of  the  services  of  good  men  ?  In  what  instances  ?  It  may 
have  excluded  from  office  unsuitable  men.  If  it  had  excluded  a 
man  even  as  learned  as  Gibbon,  from  the  Legislature,  it  would  not 
have  been  unfortunate,  if  he  was  capable  of  making  such  an  insid- 
ious, unmanly  attack  on  our  holy  religion.  As  to  jews,  mahome- 
tans,  deists,  and  atheists,  they  are  all  opposed  to  the  common  relig- 
ion of  the  Commonwealth  and  believe  it  an  imposition,  a  mere  fable, 
and  that  its  professors  are  all  under  a  wretched  delusion.  Are  such 
persons  suitable  rulers  of  a  Christian  State  ?  But  this  test  does 
much  good.  It  has  a  good  effect  on  those  who  take  it.  They  will 
not  be  so  profligate  as  afterwards  to  profess  their  infidelity,  and 
stamp  their  characters  with  hypocrisy.  It  is  in  this  way  a  great 
check  to  infidelity.  Who  can  tell  how  much  influence  it  may  have 
had  m  producing  the  present  elevated  character  of  Massachusetts  ? 


MASSACHUSETTS    CONVENTION.  207 

If  we  should  now  expunge  it,  it  would  be  a  triumph  to  infidels. 
Now,  they  would  say,  the  people  of  Massachusetts  have  determined 
that  a  profession  of  Christianity  is  not  necessary  to  the  enjoyment 
of  the  highest  honors.  The  descendants  of  the  Pilgrims  have 
blotted  out  from  the  constitution  the  great  recognition  of  the  Chris- 
tian religion.  We  ought  to  consider  this  subject  with  the  circum- 
stances with  which  it  is  combined — that  it  is  in  the  constitution — 
that  we  are  in  Massachusetts,  and  what  is  proper  here  might  be  in- 
expedient in  some  other  places.  We  ought  to  look  at  the  history 
of  Massachusetts  and  recollect  that  it  is  a  religious  Commonwealth 
— that  it  had  its  origin  in  devotion  to  the  Christian  religion,  and 
that  now  the  spirit  of  bigotry  is  gone,  we  have  only  the  good  in- 
fluence of  their  principles  and  institutions.  It  is  an  imposing  spec- 
tacle that  annually  takes  place  here,  when  the  principal  officers  of 
the  State,  in  the  presence  of  their  Maker,  and  of  an  immense  assem- 
bly, profess  their  belief  in  the  Christian  religion.  It  is  a  great 
public  homage  to  truth.  And  this  religion  is  worthy  of  all  our 
support  and  encouragement.  It  teaches  all  our  duty.  It  commands 
all  virtue  and  prohibits  all  vice.  It  is  the  greatest  bond  of  civil  so- 
ciety, and- we  ought  to  take  great  care  not  to  lessen  its  influence. 

Mr.  Q-uincy  rose  to  a  question  of  order.  He  had  hoped  that  the 
report  would  have  been  suffered  to  lie  on  the  table,  until  all  the  re- 
ports had  been  acted  on.  The  subjects  are  materially  connected. 
This  is  connected  intimately  with  the  third  article. 

President.     The  gentleman  is  himself  now  out  of  order. 

Mr.  Q.uincy.     I  am  going  to  move  to  lay  this  report  on  the  table. 

President.      That  will  be  in  order. 

The  motion  being  made  and  seconded,  Mr.  Q,.  proceeded  to  argue 
that  the  best  course  would  be  to  go  through  in  committee  with  all 
the  reports,  before  they  were  taken  up  in  Convention. 

Mr.  Richardson  of  Hingham  spoke  in  favor  of  the  motion. 

The  question  was  taken  and  decided  in  the  affirmative. 

Mr.  Dearborn  of  Roxbury  inquired  whether  it  would  be  in  order 
to  move  that  the  resolutions  offered  by  him  yesterday  be  taken  up. 

After  some  conversation  on  the  course  most  proper  to  be  pursued, 
the  resolutions  were  taken  up  and  read,  and  a  motion  was  made 
that  it  should  be  referred  to  a  committee  of  the  whole  house.  This 
motion  was  decided  in  the  negative — 139  to  176. 

Mr.  Quincy  stated  that  he  had  voted  in  the  majority  on  the  ques- 
tion just  taken,  and  for  the  purpose  that  he  might  be  in  order  to 
move  a  reconsideration  of  the  vote.  He  then  moved  that  the  vote 
be  reconsidered,  and  proceeded  to  state  his  reasons  for  it.  In  answer 
to  a  question  whether  it  was  a  fair  construction  of  the  rule  relative 
to  reconsideration  to  vote  in  opposition  to  his  opinion  for  the  express 
purpose  of  giving  him  a  right  to  call  for  the  question  again,  he  said 
that  it  certainly  was,  and  that  it  was  every  day?s  practice,  and  for 
the  reason  that  the  gentleman  who  had  made  the  motion  had  a  right 
to  be  heard  in  support  of  it ;  but  when  he  had  waived  that  right, 
and  any  gentleman  perceived  that  for  want  of  explanation,  the  mo- 


208  MASSACHUSETTS    CONVENTION. 

tion  was  likely  to  be  lost,  it  was  perfectly  right  and  common  prac- 
tice for  him  to  give  his  vote  against  the  motion,  that  he  might  be 
in  order  to  move  a  reconsideration,  and  to  state  the  reasons  for  the 
motion. 

Mr.  Dawes  of  Boston  said  he  yesterday  voted  in  favor  of  the  gen- 
tleman's proposition  being  laid  on  the  table,  but  he  thought  it  a 
most  unfortunate  circumstance  that  he  had  introduced  it.  He  was 
in  favor,  however,  of  the  gentleman  being  heard  if  he  insisted  upon 
it,  though  he  yet  hoped  the  motion  would  be  withdrawn. 

Mr.  Story  of  Salem  said  he  hoped  the  motion  for  reconsideration 
would  prevail.  Extreme  difficulties  would  arise  if  they  attempted  to 
preclude  debate.  It  was  the  right  of  every  member  to  be  heard  on 
any  proposition  he  might  make  for  the  amendment  of  the  constitu- 
tion, and  they  would  consult  their  own  dignity,  as  well  as  the  ad- 
vantage of  the  Commonwealth,  by  giving  an  opportunity'  for  a  full 
discussion  of  every  such  proposition.  They  were  sent  there  for 
that  purpose  and  they  would  save  time  by  pursuing  this  course  ;  that 
otherwise  they  would  be  laying  a  foundation  for  another  Conven- 
tion. Members  would  go  home  complaining  of  not  having  been 
heard,  and  would  argue  over  again  their  propositions.  This  might 
be  attended  with  most  disastrous  consequences.  He  said  the  vote 
just  passed  was  contrary  to  one  of  their  own  rules,  which  requires 
that  every  resolution  proposing  an  alteration  in  the  constitution, 
shall  be  discussed  in  committee  of  the  whole,  before  it  is  debated 
and  finally  acted  upon  in  Convention.  If  every  other  gentleman's 
mind  was  made  up  at  once,  upon  hearing  any  motion  read,  it  was 
not  the  case  with  himself ;  and  he  thought  they  ought  to  be  content 
to  hear  every  argument,  which  gentlemen  had  to  urge  on  any  prop- 
osition to  alter  the  constitution. 

The  question  was  then  taken  for  reconsidering  the  last  vote  and 
carried  in  the  affirmative — 310  to  18. 

It  was  then  ordered,  that  Mr.  Dearborn's  resolutions  be  referred  to 
a  committee  of  the  whole,  be  assigned  for  Monday  at  11  o'clock, 
and  in  the  meantime  be  printed. 

Choice  of  Council. — On  motion  of  Mr.  Story  the  house  went  into 
committee  of  the  whole  on  the  report  of  the  standing  committee,  on 
the  fifth  resolution  respecting  the  council,  &c. 

The  question  before  the  committee  was  upon  Mr.  Morton's 
amendment  to  the  third  resolution  reported  by  the  standing  com- 
mittee. The  amendment  proposed  that  the  counsellors  should  be 
chosen  by  the  people  in  convenient  districts,  one  counsellor  in  each 
district. 

Mr.  Hoyt  of  Deerfield  was  opposed  to  the  amendment  for  several 
reasons.  It  would  be  impossible  to  make  a  satisfactory  division  of 
the  Commonwealth  into  districts.  It  was  very  easy  for  gentlemen 
to  talk  about  districting,  but  if  a  committee  of  that  body  were  to  take 
the  census  with  them  into  one  of  the  lobbies,  and  attempt  to  make 
districts,  every  one  of  them  would  be  dissatisfied  with  any  division 
that  should  be  proposed.     He  said  there  would  be  a  difficulty  likewise 


MASSACHUSETTS    CONVENTION.  209 

in  agreeing  upon  candidates,  and  described  the  mode  practised  in 
the  nomination  of  senators.  That  the  counsellors  might  all  be  of 
the  same  profession — that  the  principle  of  electing  them  by  the  peo- 
ple was  not  carried  far  enough  for  consistency,  as  the  people  ought 
to  supply  vacancies  just  as  much  as  to  elect  in  the  first  instance — 
that  the  rights  of  the  people  were  in  fact  taken  away  by  this  mode, 
by  entangling  them  with  too  much  regulation. 

Mr.  Webster  said  that  in  his  judgment  the  decision  of  the  com- 
mittee would  essentially  depend   on  a  right  understanding  of  the 
precise  question  before  it.     Yery  various  opinions  had  been  enter- 
tained in  this  country  on  the  subject  of  these  councils,  and  it  would 
be  a  very  wide  field  of  debate,  if  it  were  all  open.     In  one  state, 
(New  Hampshire)  the  counsellors  were  chosen  in  districts  or  coun- 
ties, by  the  people.     In  New  York,  they  were  elected  by  the  house 
of  representatives,  out  of  the  senate  ;  in  Vermont,  they  were  chosen 
by  general  ticket.     As  far  as  he  recollected  there  were  but  two 
states,  Pennsylvania  and  Delaware,  in  which  the  governor  exercised 
full  executive  powers,  and  had  no  council  at  all.     The  power  of  ap- 
pointments, in  several  states,  rested  principally  with  the  Legislature. 
In  this  Commonwealth  there  had  for  forty  years  been  a  council. 
It  was  not  now  proposed  to  abolish  it.     This  council  possessed  a 
negative.     It  was  not  proposed  to  take  away  that  negative.     The 
Convention  had  decided  that  this  council   should  consist  of  seven 
members.     Upon  this  state  of  the  case  the  question  arises,  how  shall 
these  seven  members  be   chosen  ?     The  honorable  member  from 
Dorchester    proposed  to  choose  them  in  districts — and  to  this  he 
(Mr.  W.)  was  opposed.     Whatever  he  might  think  under  other  cir- 
cumstances, since  the  council  was  to  consist  of  seven  persons  only, 
he  was  hostile  to  district  election.     His  main  objection  was,  that  it 
might  operate  completely  to  paralyze  the  executive  government.     It 
was  matter  of  mathematical  certainty,  that  supposing  the  State  to 
be  divided  into  seven  districts,  to  elect  seven  counsellors ;  and  sup- 
posing an  election  to  be  contested  in  the  State,  on  the  ground  of  any 
leading  question  or  subject,  the  governor  might  be  chosen  by  a  ma- 
jority of  ten  thousand,  and  yet  a  majority  of  the  council  be  against 
him ;  and  this  though  the   districts  be  fairly  and  equally  made. 
There  might  be,  for  example,  four  counsellors  chosen,  in  four  dis- 
tricts, each  by  a  majority  of  one  hundred  votes  ;  and  there  might  be 
three  chosen,  in  the  other  districts,  of  opposite  sentiments,  each  by 
a  majority  of  two  or  three  thousand  votes.     This  was  not  only  pos- 
sible, but  quite  probable.     It  had  happened  elsewhere,  in  effect  and 
substance,  not  once  only,  but  he  believed  three  times  in  the  course 
of  seven  or  eight  years.     He  alluded  to  a  neighboring  state,  in  which 
counsellors  were  chosen  by  districts  or  counties.     This  was  an  entire 
disarming  of  the  executive  power.     To  choose  a  governor,  by  the 
whole  people,  where  every  vote  counts,   and  then  to  place  round 
him  a  council,  chosen  in  local  districts,  the  general  result  of  which 
might  not  express  the  real  wishes  and  opinions  of  the  whole  people, 
was  a  paradox,  not  easily  reconciled.     To  vest  the  executive  power 
%7 


210  MASSACHUSETTS    CONVENTION. 

in  the  governor  chosen  by  all  the  people,  and  yet  to  put  him  under 
the  control  of  seven  guardians,  chosen  in  local  districts,  and  often 
with  a  view  to  local  purposes,  appeared  to  him  to  be  acting  at  cross 
purposes.  He  maintained  that  it  was  taking  away  from  the  whole 
people,  the  right  of  choosing  the  executive.  It  was  more  truly  a 
choice  by  the  whole  people  when  made  by  the  immediate  represen- 
tatives of  the  whole  people  than  when  made  in  local  districts.  He 
had  nothing  to  say  at  present  upon  choosing  counsellors  by  general 
ticket ;  he  had  nothing  to  say  upon  the  present  existing  mode.  The 
question  was  simply  on  the  propriety  of  district  elections :  and  he 
did  maintain  that  such  was  not  a  fair  or  effectual  mode  of  constitut- 
ing a  council  which  should  be  consonant  with  the  wishes  of  a  ma- 
jority of  the  people.  It  was  a  mode  in  which  a  minority  might,  not 
in  one  case  only,  but  in  many  cases,  not  for  one  year  only,  but  for 
many  years,  possess  one  branch  of  the  executive  government,  and 
hold  a  negative  on  all  important  measures  proposed  by  the  chief 
magistrate  elected  by  the  whole  people. 

Mr.  Hussey  considered  it  a  valuable  feature  of  the  constitution 
that  there  should  be  a  council,  and  that  council  should  be  so  con- 
stituted that  there  should  be  a  harmony  between  the  governor  and 
council.  In  the  Legislative  bodies  the  different  parties  and  interests 
should  be  represented ;  but  in  the  executive  department  there  was 
no  advantage  in  this.  If  there  were  conflicting  parties  in  the  exec- 
utive branch  of  the  government  the  public  business  would  suffer. 
The  object  of  having  a  council  who  would  act  harmoniously  with 
the  governor  would  be  usually  attained  by  choosing  them  in  con- 
vention of  the  two  houses  of  the  Legislature.  If  they  were  chosen 
in  districts,  there  would  frequently  be  no  choice,  and  when  chosen 
there  would  be  a  want  of  unanimity. 

Mr.  Apthorp  of  Boston  was  not  convinced  by  the  arguments 
which  had  been  hitherto  advanced,  that  the  mode  proposed  by  the 
select  committee  was  not  the  best.  Gentlemen  who  talked  so  much 
about  the  people's  rights  might  as  well  contend  that  the  people 
should  choose  the  secretary,  treasurer  and  major  generals.  The 
choice  of  counsellors  was  at  present  virtually  by  the  Legislature, 
since  it  was  the  custom  for  those  elected  from  the  senate  to  decline. 
The  people  had  entrusted  the  Legislature  with  the  power  of  making 
the  most  important  laws,  relating  to  the  life  and  property  of  the  citi- 
zen ;  this  was  a  much  greater  power  than  that  of  choosing  coun- 
sellors. And  by  the  amendment  itself,  the  resort  was  to  the  Legis- 
lature to  supply  vacancies.  He  hoped  the  amendment  would  not 
be  adopted. 

Mr.  Austin  of  Boston  said  that  when  the  mode  of  choosing  coun- 
sellors was  under  consideration,  the  importance  of  the  office  should 
also  be  kept  in  view.  All  appointments  to  office  and  removals  from 
office  passed  in  review  before  the  governor  and  council.  The  power 
of  pardoning  criminals  was  lodged  in  their  hands  ;  questions  relating 
to  the  militia,  came  before  them  ;  and  many  other  important  ques- 
tions of  such  magnitude,  some  of  them,  as  to  have  shaken  the  foun- 


MASSACHUSETTS    CONVENTION.  211 

dations  of  the  political  temple.  The  question  then  is,  how  the 
counsellors  shall  be  chosen ;  whether  by  the  Legislature  or  by 
the  people  ?  And  if  by  the  people,  whether  by  a  general  ticket  or 
by  districts?  The  objections  to  the  first  mode  were  insuperable. 
It  was  mixing  the  branches  of  the  government,  and  it  would  intro- 
duce cabals  and  intrigues  into  the  Legislature.  The  Legislature 
were  not  to  be  intrusted  with  this  power.  Why  ?  Because  they 
have  abused  it.  What  was  the  theory  of  our  constitution  ?  That 
nine  members  should  be  selected  from  the  senate  who  should  serve 
as  counsellors.  Such  was  originally  the  practice.  There  were  ac- 
cidental vacancies  of  course.  But  in  1804  a  majority,  and  in  1805 
the  whole  of  the  senators  selected  to  sit  at  the  council  board  declined  ; 
in  violation  of  the  intention  of  the  constitution.  Another  great 
principle  ;  although  the  idea  might  be  sneered  at,  he  would  yet  in- 
sist, that  the  people  had  a  right  to  choose  the  council,  and  by  a 
direct,  not  a  circuitous  mode.  It  was  asked  by  the  gentleman  from 
Boston,  (Mr.  Apthorp,)  why  are  the  Legislature  permitted  to  choose 
the  secretary,  treasurer,  &c.  The  cases  were  not  parallel.  These 
officers  were  accountable  for  their  conduct ;  it  was  not  so  with 
members  of  the  council.  Again,  it  was  said  that  a  choice  by  the 
Legislature  was  a  choice  by  the  people.  He  denied  it.  Men  had 
been  selected  for  this  county  who  had  not  an  inhabitancy  here,  and 
would  not  have  been  elected  by  the  people.  In  regard  to  the  two 
modes  of  choosing  by  the  people,  Mr.  A.  argued  in  favor  of  choosing 
by  districts.  It  had  been  objected  by  the  gentleman  from  Salem, 
(Mr.  Pick.man)  that  districts  would  be  made  for  party  purposes:  did 
the  gentleman  mean  to  argue  from  the  abuse  of  the  thing  ?  We 
have  districts  for  senators  and  for  representatives  to  Congress.  Will 
the  gentleman  follow  up  his  argument  ?  Will  he  say  that  his  friends 
who  have  made  these  districts,  have  done  it  for  party  purposes  ? 
He  will  not,  because  it  is  not  true.  But  if  the  Legislature  will 
divide  the  State  into  districts  for  party  purposes,  they  will  choose 
counsellors  for  party  purposes.  His  object  however  was  to  have 
permanent  districts.  Some  gentleman  had  said  that  the  districts 
would  be  too  large  ;  but  if  the  whole  people  can  vote  for  governor 
without  inconvenience,  cannot  one  seventh  part  vote  for  a  counsel- 
lor ?  And  what  reason  was  there  for  taking  one  counsellor  from 
one  part  of  the  State  and  another  from  another?  To  carry  local  in- 
formation to  the  council  board — information  which  would  be  useful 
in  making  appointments,  and  in  many  other  questions  to  be  acted 
upon  by  the  executive.  It  was  said  the  counsellors  might  happen 
to  be  all  of  one  profession ;  so  might  all  the  senators,  and  yet  the 
practical  operation  of  the  mode  of  choosing  them  was  otherwise. 
Again,  it  was  said  the  council  might  be  divided  in  political  senti- 
ments ;  this  he  considered  one  of  the  greatest  arguments  in  favor  of 
a  choice  by  districts.  It  would  produce  discussion — different  ideas 
would  be  started — men  would  tax  their  ingenuity  to  support  their 
opinions  ;  this  would  enable  the  cool  presiding  genius  to  decide  with 
correctness,  and  execute  with  firmness.     It  was  said  by  the  gentle- 


212  MASSACHUSETTS    CONVENTION. 

man  from  Boston,  (Mr.  Webster,)  that  districting  would  destroy 
the  people's  rights  by  giving  to  a  minority  of  the  people  a  majority 
in  the  council  ;  he  could  not  see  the  force  of  the  remark,  or  how 
the  case  differed  from  all  elections  by  districts.  One  more  remark  ; 
having  the  minority  of  the  people  represented  in  the  council,  though 
it  would  not  control,  as  it  ought  not  to  do,  would  yet  prevent  meas- 
ures from  being  carried  with  a  high  hand,  and  the  bitterness  of 
party  would  be  allayed.  The  choice  will  thus  be  put  on  the  ground 
the  constitution  intended.  The  choice  will  be  by  the  people — it  is 
the  people's  right.  You  may  transfer  this  right  to  another  body, 
but  you  may  as  well  transfer  any  other  of  their  rights.  You  may 
remove  one  of  the  main  pillars  of  a  temple,  and  yet  the  building 
may  stand ;  but  it  will  be  in  a  dilapidated  condition  and  the  beauty 
of  the  architecture  will  be  lost. 

Mr.  Story  of  Salem  went  into  a  full  argument  against  the  amend- 
ment. We  shall  give  only  the  general  heads  of  his  speech.  He 
stated  the  immediate  question  to  be  whether  the  proposition  of  the 
select  committee  for  the  choice  of  a  council  of  seven  persons  by 
the  Legislature  should  be  struck  out,  and  that  of  the  gentleman 
from  Dorchester,  to  choose  seven  counsellors  by  the  people  in  dis- 
tricts, should  be  substituted.  This  question  had  been  treated  as  if 
it  were  a  question  about  the  rights  of  the  people.  It  was  not  in 
the  power  of  the  Convention  to  take  away  the  rights  of  the  people, 
and  no  one  had  any  inclination  to  do  it.  The  question  was  whether 
the  people  will  retain  in  their  own  hands  the  power  of  electing 
counsellors  directly,  or  will  delegate  it  to  the  two  branches  of  the 
Legislature.  And  the  determination  of  this  question  rests  on  their 
free  pleasure.  There  may  be  a  difference  of  opinion.  But  it  is 
not  a  diminution  of  the  rights  of  the  people  to  delegate  a  part  of 
their  power.  It  is  in  this  way  only  that  civil  government  is  founded 
— it  is  a  delegation  of  powers  to  allow  the  senate  and  representa- 
tives to  make  laws,  and  if  the  people  may  delegate  the  power  of 
making  all  the  laws,  may  they  not  that  of  making  appointments  ? 
Why  do  not  the  people  reserve  to  themselves  all  appointments — the 
delegation  to  the  chief  magistrate  is  a  surrender  of  power,  but  it  is 
useful  and  necessary.  Everything  dear  to  us  must  be  overturned 
if  this  right  of  delegation  is  not  to  be  preserved.  The  question  is 
whether  the  people  can  exercise  their  own  rights  most  conveniently 
in  one  mode  or  in  the  other.  He  proceeded  to  inquire  whether  the 
recent  practice  in  appointing  counsellors  was  a  violation  of  the  con- 
stitution, and  contended  that  the  practice  was  perfectly  conforma- 
ble both  to  the  text  and  spirit  of  the  constitution.  He  insisted  that 
the  constitution  left  it  entirely  to  the  option  of  the  senators  elected 
to  the  council,  to  decline,  and  that  this  was  a  wise  provision.  If  it 
had  been  otherwise  the  more  numerous  branch  of  the  Legislature 
would  always  have  the  senate  in  its  power.  Not  only  on  political 
questions,  but  on  others  which  might  arise.  They  might  wish  to 
compel  the  senate  to  yield  to  their  own  views.  One  such  question 
had  already  arisen,  several  years  in  succession.     They  would  only 


MASSACHUSETTS    CONVENTION.  213 

have  to  choose  nine  of  the  most  able  members  of  the  senate,  or 
such  as  they  believed  most  opposed  to  their  views,  and  it  would 
leave  the  senate  at  their  mercy.  Was  it  to  be  supposed  that  the 
framers  of  the  constitution  were  not  aware  of  this  ?  They  left  it 
to  every  man  to  judge  for  himself  of  the  expediency  of  leaving  the 
senate  to  go  into  the  council.  Besides  this,  there  were  many  gen- 
tlemen who  might  be  willing  to  give  their  time  and  talents  to  the 
public  during  the  sessions  of  the  senate,  who  would  yet  be  unwilling 
to  accept  a  seat  in  the  council,  and  render  themselves  liable  to  be 
called  to  perform  its  duties  through  every  part  of  the  year.  He 
next  alluded  to  the  argument  of  the  gentleman  from  Boston,  (Mr. 
Blake)  who  contended  that  to  choose  by  the  Legislature  was  rob- 
bing the  people  of  their  rights,  and  yet  closed  his  speech  with  pro- 
posing that  this  part  of  the  constitution  should  remain. 

Mr.  Blake  explained.  He  proceeded  on  the  ground  that  the 
people  had  the  right  by  the  constitution  to  act  in  the  election  of 
the  council,  and  submitted  the  proposition  on  the  ground  that  if 
nothing  else  could  be  done,  we  should  revert  to  the  mode  prescribed 
in  the  constitution. 

Mr.  Story  did  not  agree  in  the  gentleman's  premises,  nor  his 
conclusion.  Does  not  the  constitution  proceed  on  the  ground  that 
the  representatives  are  worthy  to  be  trusted  ?  To  suppose  they  are 
not,  looks  like  a  denial,  not  of  right,  but  of  good  sense  to  the  peo- 
ple. He  alluded  to  what  had  been  said  of  caucuses — and  legisla- 
tive caucuses.  He  vindicated  the  practice  of  holding  caucuses  for 
the  purpose  of  making  nomination,  as  useful  and  necessary.  If 
the  Legislature  abuse  the  powers  with  which  they  are  entrusted,  the 
people  will  choose  other  men  who  will  not.  He  was  not  aware 
that  there  had  been  abuses.  Where  there  were  political  parties  it 
was  natural  that  friends  should  consult  together,  and  it  was  proper 
that  they  should.  If  it  is  the  representatives  of  the  majority,  they 
are  bound  to  see  that  the  will  of  the  majority  is  carried  into  effect, 
and  if  they  do  not  act  with  concert,  the  minority  will  slip  in  against 
the  will  of  the  people.  He  was  not  aware  that  any  injury  had  re- 
sulted from  this  practice.  When  he  looked  back  to  the  illustrious 
men  who  had  filled  the  chair  of  chief  magistrate — the  illustrious 
men  in  the  council — when  he  considered  the  uniform  practice  of 
sending  good  men  to  the  council,  he  denied  that  there  could  have 
been  any  abuse.  He  relied  upon  the  fact  and  demanded  of  gentle- 
men to  point  out  an  instance,  when  men  unworthy  of  the  station 
had  been  chosen  to  the  office.  It  had  been  his  misfortune,  perhaps 
his  fault,  to  be  a  great  proportion  of  the  time  in  the  minority  in  this 
Commonwealth,  and  he  had  always  been  proud  of  the  men  who 
under  the  auspices  of  those  opposed  to  him  had  been  raised  to  the 
high  offices  in  the  Commonwealth.  If  districts  were  to  be  formed, 
caucuses  must  continue  to  exist.  There  was  no  other  way  in 
which  nominations  could  be  made  unless  you  take  the  nomination 
from  an  individual.  They  tend  to  conciliation  and  unanimity. 
They  are  no  evil  but  the  necessary  consequence   of  popular  elec- 


214  MASSACHUSETTS    CONVENTION. 

tions,  and  they  can  only  be  disused  when  we  become  so  corrupt  as 
to  surrender  our  rights  into  the  hands  of  some  civil  or  military  chief 
— a  period  which  he  trusted  never  would  arrive.  He  proceeded  to 
notice  an  error  which  had  crept  into  the  debate — that  the  counsel- 
lors are  now  chosen  directly  by  the  people.  He  then  stated  several 
specific  objections  to  the  proposition  of  the  gentleman  from  Dor- 
chester now  before  the  committee.  First,  it  has  on  the  face  of  it 
the  plausible  appearance,  that  the  people  choose,  but  robs  the  ma- 
jority of  the  people  of  the  right.  This  had  been  forcibly  demon- 
strated by  the  gentleman  from  Boston  (Mr.  Webster)  and  Mr.  S. 
proceeded  to  illustrate  it  farther.  He  showed  that  the  governor 
might  be  chosen  by  a  majority  of  10,  or  15,000  votes,  and  yet  a 
majority  of  the  council  chosen  in  districts  by  the  same  voters  might 
be  of  opposite  opinions  to  those  of  the  governor.  2d.  It  would 
hazard  the  governor  being  surrounded  by  a  majority  of  men  of  dif- 
ferent opinions.  It  would  become  the  leading  object  of  party  con- 
tention, instead  of  having  a  governor  of  particular  opinions,  to  sur- 
round him  by  a  council  who  would  thwart  him  in  all  his  measures. 
The  popular  leader  of  a  district  would  be  the  real  governor.  The 
governor  chosen  by  the  people  would  always  find  one  behind  the 
throne  greater  than  himself.  It  would  be  in  effect  to  abolish  the 
office  of  governor  and  set  seven  wise  men  in  his  stead.  3d.  In  this 
way  the  people  would  lose  the  power  of  making  the  most  judicious 
selection  of  counsellors — of  adapting  the  selection  of  each  accord- 
ing to  the  persons  to  be  associated  with  him.  4th.  It  would  be 
throwing  out  another  lure  for  perpetual  party  spirit — it  would  be- 
come necessary  to  carve  out  seven  equal  districts,  to  be  changed 
every  ten  years  throughout  all  time ;  and  the  formations  of  these 
districts  would  be  the  great  object  of  political  power.  To  suppose 
that  the  power  of  forming  them  would  never  be  abused,  would  be 
disregarding  all  human  prudence.  Without  alluding  to  what  had 
already  happened,  it  was  easy  to  foresee  that  such  would  be  the 
effect  of  the  proposition.  5th.  A  further  objection  was  founded  on 
the  present  distribution  of  powers  under  the  constitution.  The 
senatorial  districts  were  never  to  be  less  than  ten,  and  the  Legisla- 
ture were  never  to  have  the  discretion  to  cut  and  carve  in  such 
manner  as  to  unite  part  of  one  county  with  another.  Counties 
were  framed  for  particular  purposes,  and  by  the  habit  of  association 
acquired  a  feeling  of  common  interest.  But  this  feeling  could  not 
be  extended  beyond  the  limits  of  counties.  Yet  to  form  these  dis- 
tricts one  county  must  be  united  with  another,  and  often  lose  all  its 
powers  by  being  attached  to  one  to  which  it  has  a  particular  dislike. 
For  these  reasons  (which  are  here  but  briefly  and  very  imperfectly 
stated)  he  was  entirely  opposed  to  Mr.  Morton's  proposition. 

Mr.  Lincoln  of  Worcester  opposed  the  amendment.  He  thought 
it  would  be  easy  to  satisfy  the  gentlemen  who  were  in  favor  of  it 
that  it  was  impracticable  to  carry  the  proposition  into  effect  in  a  man- 
ner that  should  be  satisfactory.  He  proceeded  to  a  particular  exam- 
ination of  the  modes  in  which  the  districting  might  be  attempted, 


MASSACHUSETTS    CONVENTION.  215 

to  show  the  insuperable  difficulties  which  must  be  encountered. 
He  next  inquired  in  what  manner  nominations  would  be  made  in 
the  several  districts,  for  the  purpose  of  showing  that  the  result  must 
be  less  satisfactory  than  if  made  by  the  representatives  of  the  peo- 
ple chosen  for  the  purpose.  He  contended  that  the  appointment 
by  the  Legislature  was  the  mode  most  consistent  with  the  rights  of 
the  people,  and  argued  that  under  the  constitution  the  people  have 
never  directly  chosen  counsellors — that  the  mode  of  electing  by  the 
two  houses  of  the  Legislature  has  been  sanctioned  by  the  people — 
that  it  would  have  a  most  injurious  effect  to  introduce  into  the 
council  men  of  opposite  opinions  to  thwart  the  views  of  the  execu- 
tive, and  that  it  would  introduce  a  principle  by  which  improper  ap- 
proaches would  be  made  to  the  executive  through  the  counsellors 
thus  selected. 

Mr.  Dutton  rose  to  call  the  attention  of  the  committee  to  the 
precise  state  of  the  question.  It  was  on  the  motion  of  the  gentle- 
man from  Dorchester  to  amend  by  striking  out  the  proposition  of 
the  select  committee  to  choose  by  joint  ballot,  and  substituting  the 
mode  of  choosing  by  districts.  If  the  motion  was  rejected  the 
question  would  still  be  open  for  proposing  any  other  mode  ;  but  if 
the  motion  was  agreed  to,  it  excluded,  not  only  the  proposition  of 
the  select  committee,  but  all  other  modes.  He  was  opposed  to  the 
amendment,  but  if  gentlemen  did  not  wish  to  speak  further  in  sup- 
port of  it,  he  was  willing  to  waive  his  right  to  speak  against  it. 
Otherwise  he  should  claim  his  privilege. 

Mr.  Q.uincy  expressed  his  opinion  against  altering  the  principle 
of  election  already  established  by  the  constitution. 

Mr.  Bliss  rose  in  support  of  the  amendment  because  he  had  been 
particularly  called  upon.  He  thought  there  would  be  no  difficulty 
in  forming  the  districts. 

Mr.  Blake  moved  that  the  committee  rise.  He  wished  to  have 
an  opportunity  to  answer  the  arguments  of  gentlemen,  and  it  could 
not  be  done  without  going  into  the  details  of  the  subject,  which  he 
would  not  think  of  entering  upon  at  this  hour  of  the  day. 

Mr.  Parker  thought  the  question  had  been  fully  discussed  and 
that  the  committee  was  ripe  for  a  decision.  If  not  he  was  willing 
to  sit  there  until  the  sun  went  down  for  the  purpose  of  bringing 
the  discussion  to  a  close. 

The  motion  that  the  committee  should  rise  was  put  and  decided 
in  the  negative — 97  to  256. 

Mr.  Mitchell  of  Nantucket  thought  that  the  state  of  the  ques- 
tion had  not  been  correctly  explained  by  the  gentleman  from 
Boston,  (Mr.  Dutton;)  he  wished  to  be  informed. 

Mr.  Webster  said  that  the  proposition  was  to  amend  so  that  the 
election  should  be  in  districts.  All  who  were  in  favor  of  districts 
would  vote  for  the  motion,  and  all  who  were  for  any  other  mode 
would  vote  against  it. 

Mr.  Austin  called  for  a  division  of  the  question.  The  Chair- 
man pronounced  it  indivisible. 


216  MASSACHUSETTS    CONVENTION. 

Mr.  Tillinghast  of  Wrentham  said  he  should  vote  against  the 
resolution,  because  he  wished  to  have  an  opportunity  of  moving  to 
amend,  so  that  the  choice  should  be  by  the  people  on  a  general 
ticket. 

The  question  on  Mr.  Morton's  amendment  was  then  taken  and 
decided  in  the  negative,  149  to  241. 

Mr.  Foster  moved  that  the  committee  rise — decided  in  the  neg- 
ative— 146  to  241. 

Mr.  Tillinghast  then  moved  as  a  substitute  for  the  resolution  of 
the  select  committee,  that  the  constitution  be  so  amended  that  the 
governor,  lieutenant  governor  and  seven  counsellors  be  annually 
chosen  by  the  people  on  one  ticket,  one  counsellor  only  to  be  chosen 
from  one  senatorial  district. 

The  question  was  taken  and  decided  in  the  negative — 136  to 
222. 

A  resolution  was  then  moved  by  Mr.  Bliss  in  substance,  that 
the  counsellors  be  chosen  in  the  manner  now  provided  by  the  con- 
stitution, except  that  there  should  be  but  one  counsellor  in  a  dis- 
trict. 

A  motion  to  rise  was  decided  in  the  negative — 172  to  200. 

Mr.  Bliss's  motion  was  then  put,  and  negatived. 

Mr.  Blake  offered  a  resolution  providing  that  the  choice  should 
be  by  a  general  ticket,  and  stating  some  of  the  details  of  the  mode 
of  choice. 

Mr.  Foster  renewed  the  motion  that  the  committee  rise.  Neg- 
atived, 174  to  195. 

Mr.  Blake  spoke  in  support  of  his  motion  at  some  length. 

Mr.  Adams  of  Q,uincy,  who  had  been  referred  to  by  the  gentle- 
man who  last  spoke,  said  he  was  very  sorry  that  any  gentleman  of 
the  committee  should  allude  to  him.  That  he  was  the  representa- 
tive of  a  small  town,  and  that  no  more  weight  ought  to  be  given  to 
his  opinion,  than  to  that  of  any  other  delegate.  He  had  been  very 
cautious  in  speaking  from  memory  in  regard  to  the  history  of  the 
Convention  of  1780,  but  he  thought  there  was  a  great  variety  of 
opinions  in  that  Convention,  respecting  the  council.  He  believed 
that  no  ^member  of  it  ever  supposed  that  any  senator,  chosen  a 
counsellor,  should  decline  ;  much  less  that  the  whole  nine  should 
decline,  and  retain  their  seats  in  the  senate.  He  did  not  believe 
there  was  a  member  of  that  Convention,  who  would  have  wished 
the  people  to  be  deprived  of  the  right  of  electing  the  counsellors. 
He  should  vote  in  favor  of  the  amendment. 

The  motion  to  rise  was  repeated  and  decided  in  the  negative,  125 
to  225. 

The  question  on  Mr.  Blake's  amendment  was  taken  and  carried. 

193  to  179. 

The  committee  then  rose  and  reported  their  agreement  to  the  re- 
solutions as  amended. 

It  was  ordered  that  the  report  should  lie  on  the  table  and  be 
printed. 

Adjourned. 


MASSACHUSETTS    CONVENTION.  217 

Friday,  December  8. 

The  Convention  met  at  9  o'clock,  and  attended  prayers  offered 
by  the  Rev.  Mr.  Jenks.     After  the  reading  of  the  journal, 

Mr.  Ward  of  Boston,  chairman  of  the  standing  committee  on  the 
sixth  resolution,  to  whom  the  subject  was  committed,  reported  the 
following  resolution : 

Resolved,  That  the  constitution  be  so  amended  in  the  ninth  article  of  the  first  sec- 
tion of  the  second  chapter  of  the  second  part,  that  the  governor  shall  have  power,  by 
and  with  the  advice  and  consent  of  the  council,  to  fill  up  all  vacancies  which  may 
happen,  in  the  recess  of  the  General  Court,  in  the  offices  of  secretary  and  treasurer, 
by  granting  commisions  which  shall  expire  in  days  after  the  commencement 

of  their  next  session. 

The  report  being  read,  was  committed  to  the  whole  on  the  report 
of  the  select  committee  on  that  part  of  the  constitution  relating  to 
the  governor,  militia,  &c. 

Mr.  Root  of  Granville,  and  Mr.  Gardner  of  South  Brimfield,  had 
leave  of  absence  on  account  of  ill  health. 

On  motion  of  Mr.  Varnum,  the  Convention  resolved  itself  into 
committee  of  the  whole,  on  the  report  of  the  select  committee  on 
that  part  of  the  constitution  which  relates  to  the  governor,  militia, 
&c.     Mr.  Blake  of  Boston,  in  the  chair. 

The  report  having  been  read,  the  first  resolution  reported  was  ta- 
ken into  consideration  as  follows  : 

Resolved,  That  it  is  expedient  to  alter  and  amend  the  second  article  of  the  said  first 
section  by  striking  out  the  words  "  one  thousand  pounds "  and  inserting  instead 
thereof,  "  thousand  dollars  " ;  and  also  by  striking  out  the  words  "  unless  he  shall 
declare  himself  to  be  of  the  Christian  religion." 

Mr.  Varnum  said  that  the  object  of  the  first  change  was  to  accom- 
modate the  sum  stated  as  the  qualification,  to  the  present  currency 
of  the  country,  and  that  the  committee  did  not  propose  to  make  any 
material  change  in  the  amount.  In  the  latter  part  of  the  resolution 
they  proposed  to  accommodate  the  constitution  to  the  principle 
that  had  already  been  settled  by  a  vote  of  the  Convention. 

Mr.  Q,uincy  of  Boston  hoped  the  question  would  be  divided,  so  as 
not  to  put  the  Christian  religion  on  the  same  footing  with  pounds, 
shillings  and  pence. 

Mr.  Varnum  said  it  was  proposed  to  fill  the  blank  with  four  thou- 
sand dollars. 

Mr.  Parker  thought  it  unnecessary  to  make  an  alteration  merely 
on  account  of  the  currency,  or  for  the  sake  of  adding  five  or  six 
hundred  dollars  to  the  present  sum. 

Mr.  CIuincy  said  if  a  new  constitution  were  to  be  formed,  it  might 
be  proper  to  pay  regard  to  the  technical  accuracy  proposed  in  the 
resolution  ;  but  what  were  they  sent  there  for  ?  Not  to  introduce 
perfectibility  into  the  constitution,  (if  he  might  use  a  word  that  was 
not  English)  but  to  make  such  substantial  alterations  as  were  neces- 
sary. There  would  be  no  end  of  verbal  alterations,  and  the  people 
would  only  be  confused,  if  called  upon  to  vote  upon  all  the  minute 
alterations  proposed  in  that  and  other  reports  of  the  standing  com- 
mittees. There  were  but  two  amendments  which  he  was  desirous 
28 


218  MASSACHUSETTS    CONVENTION. 

of  making.  One  was  to  alter  the  senate,  so  as  so  meet  the  present 
circumstances  ;  and  this  because  it  was  necessary.  Another  was  to 
provide  for  making  future  amendments.  But  gentlemen  were  pro- 
posing to  strike  out  this  word  and  that  word  for  the  sake  of  verbal 
accuracy.     Here  it  was  proposed  to  strike  out  the  Christian  religion. 

Some  member  called  the  gentleman  to  order,  the  question  being 
for  filling  the  blank. 

Mr.  Dawes  of  Boston  said  he  thought  they  were  talking  of  dol- 
lars and  cents. 

Mr.  Q,uincy  contended  he  was  in  order. 

Mr.  Dawes.     The  gentleman  was  not  in  order. 

Mr.  Q.uincy  said  he  had  as  lief  be  called  to  order  as  not,  with  re- 
spect to  himself;  but  he  was  contending  for  the  rights  of  that  as- 
sembly. He  was  contending  that  the  making  so  many  minute  al- 
terations would  throw  the  people  into  intellectual  confusion. 

The  Chairman  said  if  the  gentleman  introduced  the  Christian  re- 
ligion for  the  sake  of  argument  against  the  resolution,  he  was  in 
order. 

Mr.  Qjjincy  said  he  trusted  that  body  were  not  to  be  confined  by  the 
strict  rules  of  courts  of  justice  where  the  mode  of  proceeding  was 
like  walking  a  crack,  or  like  a  cart  horse  on  a  railway.  If  he  gen- 
eralized, it  was  to  show  the  absurdity  of  the  particular  proposition. 

Mr.  Saltonstall  rose  to  move  that  the  consideration  of  this  reso- 
lution should  be  postponed  until  certain  principles  involved  in  other 
reports  should  be  settled.  The  propriety  of  adopting  the  first  part 
of  the  resolution  depended  upon  the  mode  in  which  the  amendments 
were  to  be  incorporated  in  the  constitution  and  submitted  to  the  peo- 
ple. The  propriety  of  adopting  the  second  part  depended  upon  the 
decision  which  should  be  made  on  a  report  which  was  now  laid  on 
the  table,  and  which  would  be  the  subject  of  discussion.  It  would 
be  improper  to  go  into  the  discussion  of  that  subject,  as  it  was  in- 
cidentally introduced  in  this  resolution,  and  we  could  not  act  upon 
this  resolution  until  the  principle  was  settled. 

Mr.  Nichols  wished  that  the  motion  to  postpone  might  be  with- 
drawn until  he  should  have  an  opportunity  of  moving  an  amend- 
ment to  the  resolution.  Mr.  Saltonstall  having  withdrawn  his 
motion,  Mr.  N.  moved  that  the  resolution  should  be  so  amended  as 
to  declare  that  the  constitution  ought  to  be  so  altered,  as  that  no  pe- 
cuniary qualification  should  be  required  for  office. 

Mr.  Dana  considered  this  an  inadmissible  proposition.  The  re- 
port related  only  to  a  particular  office.  The  proposition  was  to  make 
an  amendment  that  it  should  extend  to  all  offices. 

Mr.  Nichols  so  modified  his  amendment  that  it  should  extend 
only  to  the  office  of  governor.  He  then  moved  that  the  resolution 
should  lie  on  the  table. 

Mr.  Webster  said  the  committee  could  not  lay  the  resolution  on 
the  table.  A  motion  to  postpone  the  consideration  of  the  resolution 
would  gain  the  gentleman's  object. 

Mr.  Parker  thought  the  principle   involved  in  the  amendment 


MASSACHUSETTS    CONVENTION.  219 

might  as  well  be  settled  now  as  ever.  It  could  not  be  necessary  to 
postpone  it  to  accommodate  the  gentlemen  who  made  the  motion, 
for  he  apprehended  that  no  gentleman  would  make  a  proposition  to 
make  a  specific  amendment  to  the  constitution,  without  having  well 
considered  his  reasons. 

Mr.  Nichols  said  it  was  an  anti-republican  principle,  to  exclude 
from  office  by  requiring  any  qualification  of  this  kind.  Every  re- 
publican will  wish  the  fees  of  office  to  be  sufficient  to  support  the 
dignity  of  the  office.  No  pecuniary  qualification  was  required  by 
the  constitution  of  the  United  States  for  the  highest  magistrate  un- 
der it,  neither  was  any  such  required  by  our  constitution,  in  regard 
to  the  judges  of  the  supreme  court.  There  was  as  much  reason  for 
requiring  it  in  these  cases  as  in  relation  to  the  office  of  governor.  It 
might  happen,  that  the  wisest  and  best  man  among  us  might  be  poor, 
and  on  that  account  we  must  be  deprived  of  his  services.  He  had 
urged  the  same  argument,  the  other  day,  against  the  test,  that  it  was 
anti-republican,  and  he  hoped  the  relics  of  the  bigotry  of  our  ances- 
tors would  now  be  done  away. 

Mr.  Dana  of  Groton  spoke  in  favor  of  retaining  a  pecuniary  quali- 
fication. 

Mr.  D.  Davis  of  Boston  said  he  presumed  one  reason  of  the  qual- 
ification was,  that  if  the  governor  should  be  within  the  limits,  he 
could  not  discharge  the  duties  of  his  office. 

Mr.  Nichols's  amendment  was  negatived. 

Mr.  Varnum  moved  to  fill  the  blank  with  four  thousand  dollars. 

Mr.  Prince  of  Boston  hoped  we  should  not  adopt  this  amendment. 
He  did  not  think  it  was  necessary.  The  mere  change  of  denomina- 
tion was  of  no  consequence. 

Mr.  Foster  was  opposed  to  increasing  the  sum  above  one  thou-- 
sand  pounds.     He  should  prefer  inserting  three  thousand  dollars. 

Mr.  Sturgis  of  Boston  thought  that  to  insert  four  thousand  dol- 
lars was-  not  fixing  the  qualification  higher  than  it  was  at  the  time 
of  the  adoption  of  the  constitution.  The  depreciation  in  the  value  of 
money  Avas  more  than  equivalent  to  the  increase  in  the  sum  proposed. 

The  question  on  filling  the  blank  with  four  thousand  dollars  was 
taken  and  decided  in  the  negative. 

Mr.  Prescott  of  Boston  said  he  voted  against  filling  the  blank 
with  the  sum  proposed,  not  because  he  thought  it  was  too  high,  but 
because  he  thought  that  no  alteration  of  the  constitution  in  this  re- 
spect was  necessary.  He  was  not  surprised  that  this  amendment 
was  proposed.  It  would  have  been  perfectly  proper  if  we  were  now 
to  make  a  new  draft  of  the  constitution  and  alter  it  where  it  was 
thought  susceptible  of  improvement  in  phraseology  or  minute  details. 
But  it  seemed  to  be  generally  understood  that  a  different  mode  of 
amendment  should  be  adopted  which  would  render  trifling  alterations 
of  this  sort  unnecessary  and  improper. 

Mr.  Varnum  said  that  we  were  sent  here  to  make  all  necessary  and 
expedient  alterations  in  the  constitution.  We  appointed  committees 
on  the  different  parts  of  the  constitution  and  instructed  them  to  pro- 


220  MASSACHUSETTS    CONVENTION. 

pose  all  such  alterations  as  they  should  think  expedient.  On  this 
ground,  the  committees  had  proceeded  in  drawing  up  their  reports. 
Two  gentlemen  had  alluded  in  debate  to  a  mode  of  proposing  the 
amendments  to  the  people  as  settled.  He  was  not  aware  that  any- 
thing had  been  settled  on  this  point.  He  knew  there  was  a  report 
which  proposed  a  mode  of  proceeding,  that  would  render  it  neces- 
sary for  towns,  before  giving  their  votes  for  the  acceptance  or  rejec- 
tion of  the  amendments  proposed  by  the  Convention,  to  go  into  the 
discussion  of  each  particular  part.  This  report  had  not  been  accept- 
ed by  the  Convention  and  he  hoped  they  would  not  adopt  that 
course.  If  the  committee  had  proposed  alterations  which  the  Con- 
vention did  not  see  fit  to  approve,  he  should  have  nothing  to  object 
on  that  subject.  But  he  supposed  that  the  Convention  having  sub- 
mitted the  several  parts  to  committees  and  they  having  reported,  the 
Convention  would  act  on  each  specific  alteration  proposed  in  their 

reports. 

Mr.  Adams  of  Q,uincy  rose  to  inquire  whether  pounds,  shillings 
and  pence  were  a  legal  currency  ;  because  the  national  computation 
had  been  adopted,  which  was  in  a  decimal  ratio. 

Mr.  Mattoon  of  Amherst  said  the  standing  committee  had  pro- 
posed this  alteration,  to  agree  with  the  national  computation.  Our 
children  would  hardly  know  the  meaning  of  pounds. 

Mr.  Jackson  of  Boston  thought  that  this  amendment  involved  the 
discussion  of  a  question,  which  the  House  would  be  obliged  to  meet 
in  another  shape.  The  propriety  of  the  amendment  depended  upon 
the  question,  whether  the  constitution  was  to  be  taken  into  a  new 
draft,  or  whether.the  amendments  were  to  be  proposed  to  the  people 
and  adopted  in  the  form  of  independent  propositions.  If  the  consti- 
tution were  to  be  drafted  anew,  there  could  be  no  doubt  that  it  would 
be  proper  to  substitute  the  term  dollars  for  pounds  in  this  instance 
and  others  in  which  it  occurs,  and  to  make  various  other  verbal  al- 
terations, which  in  the  other  mode  of  proceeding  would  not  be  of  any 
importance.  Yet  he  saw  no  objection  to  proceeding  at  present  with- 
out regard  to  this  consideration,  and  considering  in  committee  of  the 
whole,  how  many  alterations  it  is  expedient  to  make.  The  other 
question  may  depend  upon  this  ;  and  when  the  Convention  come  to 
reduce  the  amendments  to  form,  whatever  form  shall  be  adopted,  it 
will  not  be  bound  by  the  decision  here.  The  present  mode  of  ex- 
pression is  not  liable  to  any  ambiguity  or  uncertainty,  because  in 
another  part  of  the  constitution  it  is  provided  that  where  sums  of 
money  are  mentioned  they  shall  be  taken  at  the  rate  of  six  and  eight 
pence  per  ounce  in  silver. 

Mr.  D.  Davis  of  Boston  said  that  he  had  been,  at  an  early  period  of 
the  proceedings,  of  opinion  that  difficulties  would  arise  from  its  not  be- 
in°-  distinctly  understood  in  what  manner  the  amendments  agreed 
to°should  be  incorporated  into  the  constitution.  Many  amendments 
had  been  proposed  on  the  presumption  that  the  constitution  was  to 
be  adopted  aneAV.  His  opinion  had  been  uniformly  against  this 
course,  and  he  should  vote  for  no  alteration  which  had  not  been 


MASSACHUSETTS    CONVENTION.  221 

rendered  necessary  or  proper  by  a  change  of  the  circumstances  of  the 
country,  and  the  propriety  of  which  should  not  be  acceded  to  with 
some  degree  of  unanimity.  He  thought  it  was  time  that  it  was 
settled  in  what  manner  the  amendments  were  to  be  framed,  and  that 
some  definite  determination  would  be  found  necessary  before  we 
could  act  upon  this  report  and  upon  some  others,  particularly  that 
upon  the  declaration  of  rights.  The  report  last  mentioned  proposed 
a  number  of  alterations  that  are  entirely  verbal.  He  wished  the 
sense  of  the  Convention  could  be  taken  upon  the  propositions 
submitted  by  the  committee  instructed  to  consider  in  what  manner 
the  amendments  shall  be  submitted  to  the  people.  Until  some  di- 
gested plan  should  be  agreed  on,  they  would  be  constantly  afloat  re- 
specting particular  and  verbal  amendments.  If  they  proceeded  to 
discuss  verbal  and  minute  alterations,  and  it  should  be  decided 
against  making  a  new  draft,  the  time  so  employed  would  be  lost. 

Mr.  Webster  was  satisfied  that  this  and  other  reports  were  such 
as  it  would  be  impossible  to  act  upon.  It  was  not  from  any  want 
of  care,  or  of  ability  on  the  part  of  those  who  have  brought  forward 
the  reports,  but  from  an  uncertainty  which  has  existed  with  respect 
to  the  mode  of  carrying  the  amendments  into  effect.  He  thought 
that  one  thing  was  indispensable — that  every  report  should  contain 
plain,  simple  and  independent  propositions,  which  could  be  under- 
stood without  any  reference  to  the  part  of  the  constitution  to  which 
they  apply.  Propositions  had  been  made  to  amend  the  constitution 
by  striking  out  parts  and  changing  words,  as  if  it  had  been  a  bill 
before  the  House — in  which  the  clerk  might  erase  or  insert  with  his 
pen  at  pleasure.  (Mr.  W.  was  here  called  to  order  and  interrupted 
by  some  discussion  of  a  question  of  order,  on  the  supposition  that  the 
question  before  the  committee  was  on  filling  the  blank  in  the  reso- 
lution. The  chairman  decided  that  Mr.  W.  was  in  order  and  he  pro- 
ceeded to  speak  on  the  resolution. )  He  said  that  if  the  House  voted 
to  make  an  alteration  by  striking  out  one  line  and  inserting  another, 
they  would  find  themselves  entangled  by  the  form  of  the  resolution. 
No  committee  appointed  to  draft  'the  final  amendment  could 
put  it  into  a  different  form.  He  thought  it  would  be  impossible  to 
act  on  the  report  but  by  recommitting  it  to  the  select  committee 
with  instructions  that  they  should  report  in  a  form  in  which  it  could 
be  understood.  If  we  resolve  that  we  will  amend  the  constitution 
by  striking  out  an  *S  in  such  a  paragraph  and  such  a  line,  and  in- 
serting a  word  in  such  another  line — by  striking  out  nine  in  such  a 
paragraph  and  inserting  seven,  it  is  not  a  proposition  that  can  be  sub- 
mitted to  the  people  in  a  form  in  which  they  can  understand  it.  He 
proceeded  to  illustrate  the  difficulty  and  the  means  of  avoiding  it  by 
other  examples.  The  difficulty  would  exist  in  whatever  fornv  it 
was  attempted  to  submit  the  amendment  to  the  people. 

Mr.  Whittemore  of  West  Cambridge  moved  to  fill  the  blank 
with  three  thousand  dollars. 

Mr.  Dana  Avas  ready  to  assent  to  this  proposition,  because  it  was 
provided  in  another  part  of  the  constitution,  to  which  he  referred, 
that  the  sum  might  be  increased  by  the  Legislature. 


222  MASSACHUSETTS    CONVENTION. 

Mr.  Starkweather  moved  that  the  committee  rise. 

This  motion  was  decided  in  the  affirmative,  242  to  94. 

The  committee  rose,  and  leave  to  sit  again  was  refused. 

Mr.  Webster  moved  to  recommit  the  report  to  the  same  commit- 
tee. He  meant  no  disrespect  to  the  committee.  He  knew  the  diffi- 
culties which  belonged  to  the  subject ;  but  he  thought  they  would 
be  able  to  present  it  in  the  form  in  which  it  might  be  acted  on  more 
satisfactorily. 

Mr.  Varnum  wished,  if  it  was  recommitted,  the  Convention  would 
give  the  committee  some  instructions.  They  had  already  acted  ac- 
cording to  their  own  opinion  of  what  was  best. 

The  President.  The  committee  would  see  what  course  was 
adopted  by  the  Convention,  in  relation  to  the  report  respecting  the 
form  of  submitting  the  amendments  to  the  people. 

Mr.  Varnum  said  it  would  be  better  that  the  report  should  lie  on 
the  table. 

Mr.  Webster  withdrew  his  motion  to  recommit,  and  moved  that 
the  report  lie  on  the  table.     Agreed  to. 

Mr.  Jackson  moved  that  the  report  on  the  mode  of  submitting 
the  amendments  to  the  people,  should  be  taken  into  consideration. 

Mr.  Varnum.  How  is  it  possible  to  determine  upon  this  subject 
until  it  is  decided  what  shall  be  the  amendments  ? 

Mr.  Jackson  said  that  the  questions  presented  by  this  report,  un- 
doubtedly depended  in  part  upon  what  amendments  should  be 
made.  But  he  did  not  know  why  the  Convention  were  not  able 
now  to  decide  upon  the  question  whether  the  amendments  should 
be  submitted  in  the  manner  proposed,  and  if  decided  in  favor  of  this 
mode,  it  would  save  the  trouble  of  discussing  verbal  amendments. 
Whether  the  amendments  which  involve  any  principle,  were  large 
or  small — there  would  be  no  difficulty  in  acting  on  them  in  this 
form. 

The  question  was  taken  and  decided  in  the  affirmative,  229  to  101. 

The  resolutions  reported  by  the  committee,  were  then  read,  and 
the  Convention  proceeded  to  consider  the  first  resolution. 

Mr.  Jackson  moved  to  fill  the  first  blank  so  that  the  people 
should  give  in  their  votes  upon  the  amendments,  on  the  second 
Monday  of  April  next. 

Mr.  Sturgis  of  Boston  thought  it  inexpedient  to  fill  the  blank  at 
present,  as  from  the  course  they  were  pursuing,  the  Convention 
might  continue  in  session  until  the  day  which  had  been  named. 

The  question  was  taken  upon  Mr.  Jackson's  motion,  and  carried 
in  the  affirmative,  182  to  113. 

Mr.  Webster  said  the  principal  object  in  taking  up  the  report,  had 
reference  to  the  mode,  and  not  the  time  of  submitting  the  amend- 
ments to  the  people  ;  he  therefore  moved  to  postpone  the  present 
resolution  and  pass  to  the  fourth. 

Mr.  Prince  of  Boston  had  not  expected  this  subject  would  be 
taken  up  at  present,  and  had  consequently  not  made  up  his  mind 
upon  it.  The  mode  of  submitting  the  amendments  to  the  people, 
would  depend  upon  their  number  and  importance.     He  believed  a 


MASSACHUSETTS    CONVENTION.  223 

new  draft  might  be  made,  and  the  constitution  yet  remain  the  con- 
stitution of  1780,  as  amended  in  1820.  If  this  course  were  not 
adopted,  he  apprehended,  that  instead  of  one  Convention  here,  there 
would  be  four  hundred  in  the  Commonwealth. 

Mr.  Q,uincy  said  all  the  resolutions  composed  one  system,  and 
they  had  better  be  taken  up  in  their  order. 

Mr.  Webster  said  the  fourth  resolution  was  not  at  all  connected 
with  the  preceding  ones,  and  that  all  our  committees  were  embar- 
rassed for  want  of  knowing  the  form  in  which  the  amendments 
were  to  be  submitted  to  the  people. 

The  motion  to  take  up  the  fourth  resolution  was  put,  and  de- 
cided in  the  affirmative,  182  to  71. 

The  fourth  resolution  was  as  follows,  viz.  : 

Resolved,  That  all  the  amendments  made  by  this  Convention,  shall  be  proposed  in 
distinct  articles ;  each  article  to  consist,  as  far  as  may  be,  of  one  independent  prop- 
osition ;  and  the  whole  to  be  so  arranged  that,  upon  the  adoption  or  rejection  of  any 
one  or  more  of  them,  the  other  parts  of  the  constitution  may  remain  complete,  and 
consistent  with  each  other.  And  if  any  two  or  more  propositions  shall  appear  to  be 
so  connected  together,  that  the  adoption  of  one  and  the  rejection  of  another  of  them, 
would  produce  a  repugnance  between  different  parts  of  the  constitution,  or  would 
introduce  an  alteration  therein,  not  intended  to  be  proposed  by  this  Convention,  such 
two  or  more  propositions  shall  be  combined  in  one  article.  And  each  of  the  said  ar- 
ticles shall  be  considered  as  a  distinct  amendment,  to  be  adopted  in  the  whole,  or 
rejected  in  the  whole,  as  the  people  shall  think  proper. 

Mr.  Sturgis  was  opposed  to  adopting  the  resolution  at  this  time. 
He  could  see  no  objection  to  acting  upon  the  principles  in  the  re- 
ports of  the  select  committees,  and  letting  them  lie  on  the  table  till 
all  were  gone  through.  The  principles  adopted  might  then  be  put 
together  and  composed  to  symmetry. 

Mr.  Jackson  said,  that  when  the  committee  met,  three  different 
modes  presented  themselves,  for  submitting  the  amendments  to  the 
people  for  their  adoption.  The  first  was,  to  make  a  new  draft,  re- 
pealing all  the  present  constitution ;  the  second,  to  put  all  the 
amendments  into  one  article.  To  both  of  these  modes  there  was 
the  same  objection.  For,  if  a  large  number  of  amendments  should 
be  submitted,  which  he  hoped,  however,  would  not  be  the  case,  the 
people  would  be  obliged  to  adopt  all  of  them  or  reject  all  of  them. 
For  instance,  if  ten  amendments  should  be  proposed,  nine  of  which 
should  be  agreeable  to  the  people,  but  the  tenth  not  so,  they  would 
be  compelled  to  adopt  the  the  tenth  for  the  sake  of  the  nine,  or  re- 
ject the  nine,  on  account  of  the  tenth.  It  was  desirable  to  have  the 
people  adopt  such  amendments  as  were  agreeable  to  them  and  such 
only ;  the  third  mode  therefore  seemed  to  be  the  fairest,  which  was, 
to  offer  the  amendments  singly.  It  was  thought  by  the  committee, 
that  it  would  not  be  a  fair  exercise  of  the  powers  of  the  Convention 
and  would  not  be  doing  justice  to  their  constituents,  unless  every 
proposition  were  submitted  separately  for  their  adoption  or  rejec- 
tion. But  here  a  difficulty  occurred,  that  one  proposition  might 
have  a  necessary  connection  with  another,  in  such  a  manner  that  if 
one  were  accepted  and  the  other  rejected,  it  might  produce  an  ab- 


224  MASSACHUSETTS    CONVENTION. 

surdity.  For  instance,  suppose  there  should  be  a  balancing  of  the 
senate  and  the  house  of  representatives — that  the  house  should  be 
reduced  if  the  senate  was  reduced ;  in  cases  of  this  kind,  it  was 
manifest  that  there  should  be  an  exception  to  the  foregoing  princi- 
ple, and  that  all  the  propositions  so  connected,  ought  to  be  united 
in  one  article.  It  also  occurred,  that  there  might  be  some  amend- 
ments which  the  people  would  not  understand,  for  want  of  know- 
ing their  connection  with  the  constitution  ;  it  was  thought  expe- 
dient that  such  amendments  should  be  prepared  in  such  a  manner 
that  the  people  might  see  at  once  their  connection  with  the  consti- 
tution. It  was  thought  by  the  committee,  that  the  amendments 
should  be  presented  in  such  a  manner  as  to  show,  at  the  same  time, 
both  the  old  provision  of  the  constitution  and  the  alteration  pro- 
posed. For  instance,  that  the  meeting  of  the  Legislature  shall  be 
in  January  instead  of  May.  With  this  would  have  to  be  coupled 
the  amendment  making  a  change  in  the  time  of  the  elections.  In 
this  manner  there  would  be  no  need  of  altering  the  constitution  at 
all,  so  as  to  say  that  this  word  or  that  word  shall  be  inserted  or 
struck  out. 

Mr.  Q,uincy  thought  there  was  a  better  mode  than  the  one  pro- 
posed, and  that  this  mode  was  utterly  impracticable.  He  thought 
it  would  be  better  to  have  only  two  articles,  one  of  them  containing 
the  mode  for  amending  the  constitution  in  future  ;  and  the  other 
containing  all  the  other  amendments. 

Mr.  Webster  said  that  when  the  constitution  of  New  Hampshire 
was  revised,  the  Convention  submitted  the  amendments  to  the 
people,  for  their  adoption,  separately,  and  it  was  found  at  the  ad- 
journed session  of  the  Convention,  that  some  were  adopted  and 
some  rejected,  so  as  to  make  incongruous  those  which  were  adopted. 
The  Convention  then  pursued  the  course  reported  by  the  commit- 
tee, of  uniting  in  one  article  all  that  were  necessarily  connected, 
and  no  farther  difficulty  occurred. 

Mr.  Varnum  agreed  with  the  gentleman  from  Boston,  (Mr.  Q,uin- 
cy,  )  on  the  propriety  of  submitting  all  the  amendments  together  for 
the  adoption  of  the  people.  He  wished  for  information  respecting 
the  third  section  of  the  act  for  calling  the  Convention ;  he  seemed 
to  think  that  by  that  section  the  people  were  not  at  liberty  to  accept 
a  part  and  reject  a  part  of  the  amendments  offered  to  them,  but  that 
they  must  accept  or  reject  the  whole. 

Mr.  Foster  thought  it  would  be  unreasonable  to  deprive  the 
people  of  the  power  of  acting  upon  each  distinct  amendment.  They 
should  have  the  same  privilege  of  voting  upon  each  proposition  that 
the  members  of  the  Convention  have. 

Mr.  D.  Davis  wished  to  ascertain  what  would  be  the  effect  and 
operation  of  the  report.  As  far  as  he  understood  it,  he  was  heartily 
in  favor  of  the  resolution  under  consideration,  because  it  would 
leave  us  to  pursue  a  course  that  was  clear  and  practicable.  Distinct 
amendments  were  to  be  submitted  to  the  people,  for  their  adoption 
or  rejection.     Those  adopted  would  form  a  part  of  the  constitution, 


MASSACHUSETTS    CONVENTION.  225 

those  rejected  would  become  a  dead  letter.  The  result  would  be 
clearly  understood  and  would  accomplish  the  object  intended  by 
this  revision.  The  effect  of  the  other  mode,  if  his  opinion  was 
correct,  would  be  different.  If  all  the  amendments  were  submitted 
in  one  article,  they  might  or  might  not  be  adopted.  If  adopted, 
there  would  perhaps  be  no  difficulty ;  but  if  rejected,  the  present 
constitution  would  remain  unaltered — a  state  of  things  exceedingly 
to  be  deprecated. 

Mr.  Wilde  rose  to  make  some  reply  to  the  argument  of  the  gen- 
tleman from  Dracut.  He  thought  that  it  was  an  unfortunate*mistake 
in  the  act,  if  it  was  a  true  construction  which  the  gentleman  had 
given  it.  But  he  contended  that  it  was  not  a  correct  construction  of 
the  paragraph,  that  the  present  constitution  "shall  be  and  remain  the 
constitution  of  the  Commonwealth,"  if  any  one  of  the  amendments 
was  rejected.  The  act  provides  that  if  the  amendments  are  "ratified 
by  the  people  in  the  manner  directed  by  the  Convention,  the  consti- 
tution shall  be  deemed  and  taken  to  be  altered  or  amended  accord- 
ingly." A  part  of  that  manner  of  ratifying  will  be,  that  if  they 
adopt  any  one  or  more  of  the  amendments  proposed,  it  shall  be 
amended  accordingly.  He  was  satisfied  that  all  who  were  in  favor  of 
the  constitution,  as  it  now  stands,  and  against  any  amendment,  would 
be  most  likely  to  gain  their  object  by  connecting  the  amendments  in 
one  article.  This  would  be  the  most  likely  mode  to  lead  to  the  re- 
jection of  the  whole  ;  but  the  committee  were  unanimously  of  opin- 
ion that  this  would  be  an  improper  mode.  He  proceeded  to  explain 
the  operation  of  this  mode  of  submitting  the  amendments.  It  would 
give  the  people  an  opportunity  to  adopt  such  as  they  choose,  and 
would  not  compel  them  to  reject  such  as  they  approve,  because  con- 
nected with  such  as  they  disapprove.  Verbal  amendments,  such  as 
the  substitution  of  "authority  of  the  Legislature,"  for  "legislative 
authority,"  and  "citizen"  for  "subject,"  could  not  be  submitted  to 
the  people  in  this  mode.  But  it  was  not  important  to  touch  the 
constitution  for  these  purposes,  unless  where  the  construction  is 
doubtful,  nor  was  it  wise  or  useful  to  go  into  these  alterations. 

Mr.  Quincy  said  it  would  be  in  some  degree  to  insult  the  people, 
to  submit  to  them  a  proposition  of  this  kind.  It  would  be  imprac- 
ticable for  them  to  examine  and  discuss  intelligently  such  a  number 
of  propositions,  and  it  would  be  left  to  accident  whether  many  of 
them  would  be  accepted  or  rejected.  All  I  contend  is,  make  the 
propositions  distinct  and  so  few  that  the  people  may  understand 
them. 

Mr.  Lincoln  expressed  his  entire  concurrence  in  the  proposition 
offered  by  the  committee.  He  answered  the  objections  of  the  gen- 
tleman from  Boston.  He  thought  that  the  proposition  was  entirely 
practicable.  The  amendments  might  be  submitted  to  the  people  in 
so  distinct  a  form  that  there  could  be  no  difficulty  in  acting  upon 
them.  The  objection  seemed  to  presuppose  a  great  degree  of  indif- 
ference, or  want  of  intelligence  on  the  part  of  the  people.  He  ar- 
gued that  if  several  propositions  were  submitted  together,  all  who 
29 


226  MASSACHUSETTS    CONVENTION. 

objected  to  any  one  of  them,  although  they  approved  of  all  the  rest, 
would  vote  against  the  whole,  and  that,  although  there  might  not 
be  a  majority  of  opinions  against  any  amendment  singly,  they 
might  all  be  rejected,  because  it  would  be  impossible  to  vote 
against  one  without  voting  against  all. 

Mr.  Holmes,  in  reply  to  the  objection  to  submitting  the  amend- 
ments in  distinct  parts,  that  the  people  would  not  be  able  to  under- 
stand them,  said  if  they  could  not  act  intelligently  upon  the  parts, 
they  could  not  act  with  intelligence  upon  the  whole.  He  gave  his 
reasons  for  approving  of  the  resolution. 

Mr.  Blake  thought  there  was  an  intrinsic  difficulty  in  the  subject. 
But  he  thought  that  before  gentlemen  objected  to  the  mode  pro- 
posed by  the  committee,  they  ought  to  be  required  to  furnish  a  sub- 
stitute. If  all  the  amendments  were  stated  to  the  people  to  be  ac- 
cepted or  rejected  together,  and  the  people  should  reject  the  whole, 
we  should  be  left  in  a  deplorable  state.  The  same  objection  would 
exist  to  submitting  the  amended  constitution  in  a  new  draft.  There 
was  a  like  objection  to  the  proposition  of  the  Rev.  gentleman  from 
Boston. 

Mr.  Enoch  Mudge  of  Lynn,  inquired  if  the  amendments  should 
be  sent  out  in  this  way  to  the  people  for  adoption,  whether  they 
would  hereafter  be  printed  and  used  in  the  form  of  an  appendix  to 
the  constitution,  or  whether  they  could  be  incorporated  into  the 
body  of  it  so  that  any  one  who  should  wish  to  read  it  hereafter 
would  be  able  to  read  it  without  reading,  at  the  same  time,  the  re- 
jected parts  of  the  constitution. 

The  President  explained.  The  adoption  of  these  resolutions 
would  not  preclude  any  proposition  for  effecting  the  object  which 
the  gentleman  from  Lynn  had  in  view. 

Mr.  Flint  thought  the  greatest  difficulty  would  arise  in  the  town 
of  Boston.  If,  when  submitted  for  adoption,  there  should  be  one 
hundred  gentlemen  who  wished  to  debate  it,  he  was  aware  it  would 
take  a  great  deal  of  time.  But  he  wished  they  should  do  it  at  their 
own  expense,  and  that  the  Convention  should  not  consume  time,  to 
avoid  this  difficulty.  In  other  towns  there  would  be  no  difficulty. 
If  they  should  reject  all  the  amendments  but  that  which  related  to 
the  senate,  he  should  be  glad.  We  should  still  have  a  constitution 
and  be  on  safe  ground. 

Mr.  Williams  was  satisfied  with  the  report,  but  asked  whether  it 
would  not  preclude  the  drafting  the  constitution  in  the  amended 
form.  If  it  could  be  done  by  a  committee,  or  in  any  other  way,  he 
should  be  better  satisfied.  He  thought  it  important  that  the  consti- 
tution as  amended  should  be  in  a  form  in  which  it  could  be  read 
and  understood  without  reading  the  old  constitution. 

Mr.  Parker  of  Charlestown  thought  we  were  not  ready  to  act  on 
this  proposition.  How  could  we  determine  in  what  manner  the 
amendments  should  be  submitted,  before  it  was  determined  what 
the  amendments  were.  He  thought  it  would  be  impracticable  to 
submit  them  in  this  mode,  if  half  the  amendments  which  had  been 


MASSACHUSETTS     CONVENTION.  227 

proposed  were  adopted.  The  House  had  been  taken  by  surprise — 
the  printed  report  had  not  been  in  the  hands  of  members. 

Mr.  Saltonstall  said,  that  the  embarrassment  this  morning  did 
not  arise  from  the  difference  of  opinion  between  two  gentlemen,  as 
had  been  intimated  in  the  course  of  the  debate,  but  from  the  intrin- 
sic difficulties  in  the  report.  There  could  be  no  difficulty,  on  the 
part  of  the  people,  acting  upon  the  amendments  submitted,  in  the 
manner  now  proposed.  If  they  cannot  understand  the  parts,  they 
cannot  the  whole.  The  amendments  are  not  to  be  voted  down,  but 
to  be  discussed ;  and  if  discussed,  it  can  be  much  better  done,  by 
taking  plain  propositions  in  the  form  in  which  they  may  be  sub- 
mitted to  them,  than  by  taking  the  whole  constitution,  and  proceed- 
ing in  it,  by  sections. 

The  question  was  then  taken  upon  the  motion  to  postpone  the 
resolutions,  and  decided  in  the  negative,  111  to  250. 

The  question  was  then  taken  on  the  acceptance  of  the  fourth  res- 
olution, and  decided  in  the  affirmative. 

The  other  resolutions,  on  motion  of  Mr.  Webster,  were  laid  on 
the  table. 

Mr.  Starkweather  moved  that  when  the  Convention  adjourned, 
it  should  adjourn  to  3  o'clock  in  the  afternoon. 

This  motion  was  afterwards  withdrawn  by  the  mover. 

Mr.  Buss  renewed  the  motion  for  afternoon  sessions,  after  Mon- 
day next.  After  some  debate  the  question  was  decided  in  the 
negative,  92  to  234. 

Leave  of  absence  was  granted  to  Messrs.  Arey  of  Wellfleet, 
Austin  of  Charlestown,  Bartlett  of  Plymouth,  and  Hamilton  of 
Palmer. 

Leave  was  refused  to  Mr.  Weston  of  Middleborough,  and  also  to 
four  other  gentlemen,  who  applied  on  account  of  professional  busi- 
ness, in  the  courts  in  Worcester  county. 

The  House  then  adjourned. 


Saturday,  December  9. 

The  House  was  called  to  order  at  twenty  minutes  past  9  o'clock, 
and  the  journal  of  yesterday  was  read. 

Mr.  Prince  of  Boston  moved  to  take  up  the  report  of  the  com- 
mittee of  the  whole  on  the  subject  of  the  council. 

Mr.  Q,uincy  of  Boston  said,  that  according  to  the  understanding 
of  a  former  day,  all  the  reports  of  the  committee  of  the  whole  were 
to  lie  on  the  table  until  all  the  reports  of  the  select  committees  were 
acted  upon  in  committee  of  the  whole.  Otherwise  he  should 
be  under  the  necessity  of  making  a  motion  sooner  than  he  intended 
to  have  done.  He  wished  to  get  to  the  subject  of  the  senate  as 
soon  as  possible,  and  the  motion  he  alluded  to  would  be  that  the 
senate  shall  consist  of  thirty-one  members,  and  that  the  counsellors 
shall  be  taken  from  the  Commonwealth  at  large. 


228  MASSACHUSETTS    CONVENTION. 

Mr.  Prince  withdrew  his  motion. 

Mr.  Richardson  of  Hingham  proposed  that  the  report  of  the 
standing  committee  on  the  declaration  of  rights  should  be  taken  up. 

A  question  was  asked  whether  it  had  not  been  assigned  for 
Monday. 

Mr.  Bliss,  the  chairman  of  the  committee,  said  it  had  been  as- 
signed for  Friday,  but  it  was  understood,  that  it  should  not  come 
on  till  Monday,  the  reports  on  the  judiciary  and  on  the  senate,  &c, 
both  having  the  precedence. 

The  President  said  he  did  not  see  the  chairman  of  the  commit- 
tee on  the  judiciary  (Mr.  Story)  in  his  place,  otherwise  it  might  be 
proper  to  move  to  take  up  the  report  of  that  committee. 

Mr.  Varnum  of  Dracut  said  he  should  wish,  if  gentlemen  could 
not  stay  here,  that  the  Convention  should  adjourn  in  order  that  other 
gentlemen  might  go  home  and  visit  their  families. 

(A  few  minutes  afterwards  Mr.  Story  came  into  the  house.) 

On  motion  of  Mr.  Prescott  the  Convention  went  into  committee 
of  the  whole  on  the  report  of  the  select  committee  on  that  part  of 
the  constitution  which  relates  to  the  senate  and  house  of  representa- 
tives, Mr.  Varnum  in  the  chair. 

The  report  was  read,  and  the  first  resolution  taken  into  considera- 
tion, viz.  : 

Resolved,  That  it  is  proper  and  expedient  so  far  to  alter  and  amend  the  constitu- 
tion, as  to  provide,  that  there  shall  be  annually  elected,  by  the  freeholders,  and  other 
inhabitants  of  the  Commonwealth,  thirty- six  persons  to  be  senators  for  the  year  en- 
suing their  election. 

Mr.  Prescott  said  that  though  the  first  resolution  only  was 
under  consideration,  it  might  not  be  improper  to  state  generally  the 
views  of  the  select  committee  on  the  whole  subject.  This  part  of 
the  constitution  was  referred  to  a  numerous  committee  from  differ- 
ent parts  of  the  Commonwealth  who  had  had  it  under  consideration 
for  a  long  time,  and  if  the  result  was  not  such  as  all  would  approve, 
it  was  not  because  there  had  been  any  want  of  attention  in  the  com- 
mittee. They  felt  the  importance  of  the  subject  and  entered  upon 
it  fully  impressed  with  its  difficulties.  The  subject  first  taken  into 
consideration  was  the  senate.  They  had  agreed  to  fix  the  number 
of  members  at  thirty-six.  This  was  not  quite  so  large  a  number  as 
was  fixed  by  the  present  constitution — but  from  the  forty,  nine 
counsellors  were  to  be  selected,  of  whom  it  might  be  expected  some 
would  decline,  though  not  all,  as  has  been  the  practice  of  late  years. 
The  committee  thought  thirty-six  was  a  sufficient  number  to  do  the 
business.  It  was  rather  small  compared  with  the  number  of  the 
house  of  representatives,  but  was  larger  than  formerly,  when,  if  the 
counsellors  accepted  their  appointment,  they  were  reduced  to  thirty- 
one.  Some  members  of  the  committee  preferred  that  the  number 
should  be  larger,  that  it  might  be  a  more  complete  balance  to  so 
large  a  number  in  the  other  branch.  The  next  question  was,  on 
what  basis  it  should  be  apportioned.  Should  it  be  on  property,  as 
at    present — or   on    population?     There   was   much    difference    of 


MASSACHUSETTS    CONVENTION.  229 

opinion.  Some  were  in  favor  of  forming  as  many  districts,  of  equal 
population,  as  there  should  be  senators,  and  that  the  same  should  be 
districts  for  the  choice  of  representatives.  But  a  large  majority  of 
the  committee  were  opposed  to  this  scheme,  as  not  affording  that 
check  of  one  branch  upon  another  which  might  be  expected,  where 
the  districts  for  the  two  were  differently  constituted.  Others  were 
in  favor  of  districts  similar  to  those  which  now  exist,  and  of  appor- 
tioning the  senators  among  them  according  to  population.  A  large 
majority  were  also  opposed  to  this  plan.  They  considered  that  the 
design  of  government  was  the  protection  of  property  as  well  as  of 
personal  rights — that  there  should  be  a  representation  of  property  as 
well  as  of  persons.  This  must  be  done,  either  by  giving  the  power 
of  voting  only  to  persons  possessed  of  property,  a  practice  which 
had  not  prevailed  in  this  Commonwealth,  or  by  giving  a  greater 
representation  to  the  parts  of  the  state  where  there  was  the  greatest 
accumulation  of  property.  The  last  mode  was  preferred.  In  this 
manner,  a  security  is  provided  for  rights  of  both  descriptions  ;  of 
rights  of  the  person  in  the  most  numerous  branch,  and  of  property 
in  the  other.  But  a  more  important  view  of  the  subject  was,  that 
the  senate,  constituted  in  this  manner,  formed  a  more  effectual  check 
upon  the  house  of  representatives.  If  there  were  two  bodies  elected 
by  the  same  persons,  in  the  same  districts,  and  in  the  same  propor- 
tions, although  they  sat  in  different  chambers,  they  would  not  act 
in  an  equal  degree  as  a  check  upon  each  other.  Another  argument 
in  favor  of  this  mode  was  derived  from  the  principle  that  represen- 
tation should  be  in  some  degree  proportioned  to  taxation.  Taxes 
are  assessed  upon  the  different  parts  of  the  Commonwealth  in  pro- 
portion to  the  valuation  of  their  property,  and  if  one  portion  of  the 
Commonwealth  should  wish  to  avoid  its  due  share  of  taxation,  by 
an  unjust  valuation,  it  would  be  restrained  in  some  degree  by  the 
consideration  that  it  would  suffer  a  proportionate  diminution  of 
power.  It  was  thought  too  that  no  alteration  should  be  made  where 
no  inconvenience  had  been  felt.  We  had  lived  forty  years  under 
the  constitution,  and  it  was  not  known  that  any  inconvenience  had 
been  experienced  from  this  principle.  On  the  other  hand  it  was 
recollected  that  positive  advantages  had  been  derived  from  the  par- 
ticular organization  of  this  branch  of  the  Legislature.  It  would  be 
recollected,  that  the  constitution  contained  a  provision,  that  there 
should  not  be  more  than  six  senators  from  any  one  district,  and  that 
there  should  not  be  less  than  ten  districts.  This  limitation  might 
be  thought  to  trench  upon  the  principle  which  was  adopted  as  the 
basis.  Some  districts  would  be  now  entitled  to  seven  senators  and 
perhaps  to  more,  but  in  the  smaller  districts  there  would  be  large 
fractions  for  which  there  should  be  some  compensation.  It  seemed 
proper  also  to  provide  that  no  one  district  should  be  so  large  as  to 
have  a  very  great  proportion  of  power,  whatever  might  be  its 
amount  of  property.  The  propositions  must  be  considered  as  con- 
nected together,  and  forming  a  system.  Some  of  them  might  be 
approved  when  considered  as  a  part  of  the  system,  which  would 


230  MASSACHUSETTS    CONVENTION. 

not,  if  taken  alone.  It  will  be  found  that  the  large  towns,  which 
are  benefited  by  the  representation  of  property,  in  the  senate,  are 
reduced  in  the  number  of  their  representatives.  This  was  an  ad- 
ditional reason  for  retaining  the  old  principle  in  regard  to  the  senate. 
It  was  thought  that  the  representatives  being  reduced,  they  should 
be  paid  out  of  the  public  treasury.  This  would  weigh  heavily  on 
the  large  towns.  Boston,  for  instance,  which  would  have  but  four- 
teen or  fifteen,  would  pay  for  forty  or  fifty.  This  was  deemed  some 
compensation  to  the  small  towns,  which  would  be  thus  enabled  to 
be  represented  during  the  whole  session.  He  proceeded  to  remark 
on  that  part  of  the  report  which  relates  to  the  house  of  representa- 
tives. There  was  bat  one  opinion  in  the  committee  on  the  ex- 
pediency of  reducing  the  number  of  members,  but  on  what  was  the 
most  beneficial  mode,  there  were  various  opinions.  The  present 
number  was  more  than  five  hundred,  and  there  was  nothing  to  pre- 
vent the  augmentation  of  the  number  by  the  increase  of  population, 
and  the  division  of  towns.  It  was  considered  that  a  house  of  five 
hundred  was  much  too  large  a  body  to  be  able  to  legislate  to  ad- 
vantage— they  could  not  compare  and  communicate  opinions,  so  as 
to  act  with  the  united  wisdom  of  the  whole — they  felt  little  re- 
sponsibility, and  when  the  members  were  constantly  changing,  as 
was  commonly  the  case,  they  could  feel  hardly  any.  Those  who 
begin  business,  leave  before  it  is  finished.  The  whole  quorum 
might  be  changed  four  or  five  times  in  the  same  session.  Business 
therefore  was  not  done  with  the  same  care  and  attention  that  it 
would  be  where  the  same  members  continued  through  the  session, 
and  kept  their  eye  on  the  business  from  the  beginning  to  the  end. 
Great  opportunity  was  afforded  for  carrying  particular  projects.  It 
was  only  necessary  to  seek  a  favorable  moment  for  bringing  forward 
a  favorite  measure,  and  it  might  be  carried  in  opposition  to  the 
sense  of  a  great  majority  of  the  whole  house.  The  number  was 
more  than  double  the  most  numerous  legislative  body  in  any  of  the 
states.  But  there  was  no  mode  of  reducing  it  which  was  not  at- 
tended with  great  difficulty.  There  were  various  opinions  with 
respect  to  the  most  expedient  mode.  Several  were  proposed  and 
discussed  in  the  committee.  One  was,  that  the  State  should  be  di- 
vided into  as  many  equal  districts  as  there  were  senators ;  and  that 
each  district  should  choose  a  certain  number  of  representatives. 
This  was  not  agreeable  to  the  views  of  a  majority  of  the  com- 
mittee. 

Another  mode  was,  to  form  convenient  districts  of  from  6  to 
15,000  inhabitants,  preserving  town  and  county  lines,  and  to  give 
each  district  a  number  of  representatives  proportioned  to  its  popula- 
tion. But  the  majority  of  the  committee,  considering  the  attach- 
ment of  the  towns  to  their  corporate  privileges,  determined  to  adhere 
to  the  old  usage  of  choosing  by  towns.  But  there  were  298  towns 
now  entitled  to  elect  a  representative  ;  and  if  each  town  were  al- 
lowed still  to  choose  one,  and  the  large  towns  were  deprived  of 
their  right  to  a  proportionate  weight  in  the  representation,  there 


MASSACHUSETTS     CONVENTION.  231 

would  be  still  a  very  large  house.  It  was  evident,  therefore,  if  any- 
reasonable  and  valuable  change  was  to  be  made,  the  limit  of  popula- 
tion to  entitle  a  town  to  be  permanently  represented,  must  be  in- 
creased. It  was  thought  more  convenient  to  assume  the  actual 
population,  as  taken  by  the  census  once  in  ten  years,  as  the  basis  of 
apportionment,  than  to  place  it  upon  the  number  of  polls  as  hereto- 
fore. It  was  agreed  that  whatever  number  was  assumed  to  entitle 
a  town  to  one  member,  double  that  number  should  be  required,  as 
the  standing  ratio  to  authorize  each  additional  member.  On  this 
principle  the  parts  of  the  State  divided  into  small  towns  would  be 
fully  compensated,  for  the  unrepresented  portions,  which  are  likely 
to  occur  in  every  town ;  and  every  county  would  have  nearly  an 
exact  proportion  of  representatives  compared  with  their  population. 
But  after  making  this  full  allowance,  it  was  thought  there  was  no 
reason  for  adopting  any  other  ratio  for  the  additional  members. 
There  was  some  difference  of  opinion  respecting  the  most  suitable 
number  to  which  the  house  should  be  reduced.  Some  of  the 
committee  thought  it  should  be  as  low  as  from  120  to  150 ;  others 
200  to  250.  A  majority  of  the  committee  thought  it  would  be  best 
to  assume  a  basis  that  would  give  from  260  to  300  members.  Va- 
rious numbers  were  proposed  as  the  limit  of  population  that  should 
entitle  a  town  to  a  representative ;  but  1200  was  fully  agreed  on,  it 
being  computed  that  this  number  would  give,  as  the  population  now 
is,  a  representation  of  about  260  members.  It  was  computed  that 
there  were  147  or  148  towns  now  entitled  to  a  representative, 
whose  population  was  below  1200.  What  provision  should  be 
made  for  these  towns  ?  No  one  thought  that  they  should  be  de- 
prived of  the  same  proportion  of  representation  as  they  now  have. 
Various  modes  were  proposed.  It  was  found  that  their  average 
population  was  about  800.  One  proposition  was  to  put  two  towns 
together,  and  to  allow  them  to  choose  jointly,  either  at  large,  or  from 
each  alternately.  There  were  objections  to  this  :  there  would  be 
jealousies  ;  the  larger  town  would  control  the  smaller.  It  was 
thought  that  it  would  be  more  acceptable,  to  divide  them  into  two 
classes,  putting  the  larger  into  one  class,  and  the  smaller  into  the 
other,  and  to  give  each  a  right  to  choose  alternately.  If  there  was 
an  odd  number  in  any  county,  one  should  choose  every  other  year. 
In  this  manner  every  small  town  would  have  its  due  proportion  of 
representation,  and  taking  them  together,  they  would  have  a  consid- 
erable advantage.  The  average  number  of  representatives  in  all 
the  large  towns,  is  only  one  for  every  2400  inhabitants.  But  all 
the  towns  under  1200,  as  well  as  those  between  1200  and  2400, 
have  a  considerable  advantage.  The  148  towns  which  have  under 
1200  inhabitants,  will  be  entitled  permanently  to  74  representatives, 
which  is  an  average  of  one  for  every  1632  inhabitants.  If  their 
population  was  all  in  one  town  it  would  give  but  51  members. 
There  are  106  of  a  population  between  1200  and  2400.  which  will 
be  entitled  to  one  representative  each,  making  an  average  of  one 
representative  for  every  1646  inhabitants.     The  population  of  these 


232  MASSACHUSETTS     CONVENTION. 

106  towns,  if  together  in  one  town,  would  give  them,  on  the  princi- 
ple applicable  to  the  large  towns,  but  70  representatives ;  and  the 
population  of  the  253,  which  will  now,  on  the  principle  assumed, 
have  180  representatives,  would,  if  the  whole  were  in  one  town,  be 
entitled  to  but  121.  The  small  towns,  therefore,  of  under  1200 
inhabitants,  as  well  as  those  between  1200  and  2400,  will,  on  an 
average,  have  a  representative  for  about  two  thirds  of  the  popula- 
tion which  will  be  the  average  number  required  to  give  one  in  the 
large  town  ;  so  that  instead  of  losing  any  share  of  their  influence  by 
the  proposed  mode  of  representation,  they  gain  one  third.  When 
any  of  the  small  towns  which  are  now  to  be  classed,  shall  rise 
above  1200  inhabitants,  they  are  to  have  the  privilege  of  a  perma- 
nent representative.  But  this  privilege  is  not  to  be  given  to  a  new 
town,  which  is  formed  by  a  voluntary  division  of  a  town  now  ex- 
isting, until  it  shall  rise  to  2400  inhabitants.  This  scheme  would 
reduce  the  house  of  representatives  to  about  one  half  the  present 
number.  The  committee  were  induced  to  agree  that  the  members 
should  be  paid  out  of  the  treasury  of  the  Commonwealth.  They 
were  aware  of  the  inequality  of  this  mode  of  compensation ;  but 
they  considered  that  the  expense  would  be  reduced ;  that  the  busi- 
ness would  be  transacted  better  ;  that  where  they  are  paid  by  the 
towns,  the  expense  to  the  small  towns  is  heavy,  and  they  attend  so 
short  a  period  of  time  as  hardly  to  be  of  advantage  to  the  towns 
or  to  the  Commonwealth.  They  thought,  therefore,  that  it  would 
be  for  the  public  benefit  that  they  should  be  paid  from  the  pub- 
lic treasury,  as  there  was  no  other  mode  of  inducing  them  to 
remain  through  the  session.  This,  however,  was  on  condition 
that  the  number  should  be  reduced  in  the  manner  proposed,  and 
with  some  that  the  senate  should  continue  to  be  apportioned  as  it 
now  is.  It  was  proposed  that  the  quorum  in  both  houses  should  be 
altered  to  correspond  with  the  change  in  their  organization.  As 
there  would  be  no  excuse  for  non-attendance  in  the  house  of  rep- 
resentatives, there  could  be  no  objection  to  increasing  the  quorum 
from  sixty  to  an  hundred.  He  stated  as  an  additional  reason  for 
classing  the  small  towns  instead  of  forming  them  into  districts,  that 
some  new  tribunal  would  be  necessary,  different  from  any  now 
organized,  to  which  the  votes  should  be  returned  for  examination. 

Mr.  Dearborn  thought  gentlemen  had  not  expected  that  this 
report  would  be  taken  up  at  this  time,  and  that  they  were  not  pre- 
pared to  act  upon  it.  He  therefore  hoped  it  might  be  assigned  to  a 
future  day,  and  moved  that  the  committee  should  rise  and  report 
progress. 

The  question  was  taken  on  the  motion,  and  decided  in  the  nega- 
tive—117  to  195. 

Mr.  Pickman  rose,  not  to  enter  into  a  discussion  of  the  resolution, 
but  to  express  a  wish  that  no  question  might  be  taken  to-day  on  the 
resolution  in  the  thin  state  of  the  House.  In  the  mean  time  it 
might  be  debated  and  the  views  of  the  gentlemen  upon  it  might  be 
ascertained  ;  but  it  would  be  improper  to  come  to  a  decision  on  so 


MASSACHUSETTS    CONVENTION.  233 

important  a  subject,  without  previous  notice,  and  when  so  many 
members  were  absent.  Mr.  Parker  thought  there  would  be  no 
objection  to  proceeding  in  the  discussion,  as  it  was  not  probable  that 
the  committee  would  be  ready  to  take  the  question  on  the  resolution 
in  the  course  of  the  day. 

Mr.  Keyes  of  Concord  moved  to  amend  the  resolution  by  insert- 
ing after  "  Commonwealth,"  the  words  "  of  twenty  one  years  of 
age,  paupers  excepted,"  and  by  striking  out  "  thirty-six,"  and  in- 
serting "  thirty-one."  His  object,  he  said,  was  to  take  away  the 
qualification  now  required,  that  the  electors  of  senators  should  be 
possessed  of  two  hundred  dollars.  He  thought  that  provision  was 
pregnant  with  much  evil ;  that  it  had  often  been  the  cause  of  moral 
perjury.  As  to  the  number  of  senators,  it  was  believed  that  thirty- 
six  were  more  than  were  necessary  ;  that  thirty-one  was  the  original 
number  expected  to  be  in  the  senate,  as  it  was  not  supposed  that 
those  selected  for  counsellors  would  decline  the  office ;  and  that 
since  Maine  was  separated,  thirty-one  would  be  enough. 

Mr.  Freeman  of  Boston  rose  to  speak  only  to  that  part  of  the 
motion  which  proposed  to  change  the  number  of  senators  from  36 
to  31.  He  was  in  favor  of  retaining  36  on  account  of  the  peculiar 
properties  of  that  number.  It  was  susceptible  of  a  more  perfect 
division  than  almost  any  other  number.  It  was  divisible  by  2,  3, 
4,  6,  &c.  It  was  equal  to  the  sum  of  an  arithmetical  series  of  num- 
bers, 1,  2,  3,  &c,  to  8.  He  stated  other  peculiar  properties  of  this 
number.  But  31  was  a  prime  number,  divisible  by  nothing.  The 
peculiar  advantages  of  .the  number  proposed  would  be  apparent  in 
the  facility  of  apportioning  the  senators  among  the  several  districts 
according  to  property,  if  that  was  assumed  as  the  whole  number  of 
the  senate.  The  number  of  senators  assigned  to  the  several  dis- 
tricts in  proportion  to  their  respective  amounts  of  tax,  would  be, 
according  to  the  following  statement,  apportioned  on  1000  dollars  : 

Loioest  sum.  Mean  sum.  No.  of  senators. 

25 37.50 for  1 

50 62.50 •     ....  2 

75 87.50 3 

100 112.50 4 

125 137.50 5 

150 162.50 6 

175 187.50 7 

200 212.50 8 

He  added  that  36  was  the  number  originally  intended  to  repre- 
sent Massachusetts ;  the  other  4  being  intended  to  represent  the 
District  of  Maine. 

Mr.  Savage  of  Boston  wished  that  there  might  be  a  division  of 
the  question  ;  or  he  hoped  the  gentleman  from  Concord  would  see 
the  advantage  of  acting  upon  each  part  of  his  amendment  by  itself, 
and  would  withdraw  his  motion  for  the  purpose  of  introducing 
two  separate  propositions,  one  relating  to  the  number  of  the  sen- 
ators, the  other  to  the  qualification  of  the  electors. 

Mr.  Keyes  said  he  had  no  objection. 
30 


234  MASSACHUSETTS    CONVENTION. 

The  Chairman  said  it  was  well  enough  at  present,  as  the  question 
was  capable  of  division,  both  parts  making  sense.  The  chairman 
then  stated  the  question  to  be  on  the  first  part,  respecting  the  quali- 
fications of  electors. 

Mr.  Beach  of  Gloucester  moved  to  insert  in  the  amendment  after 
"paupers  "  the  words  "and  those  under  guardianship." 

Mr.  Bond  of  Boston  inquired  of  the  chairman  whether  the  ques- 
tion was  divisible,  being  to  strike  out  and  insert. 

Mr.  Prescott  said  the  object  of  the  committee  was  to  present,  in 
the  first  resolution,  the  single  question  of  the  number  of  senators. 
They  had  not  touched  the  subject  of  the  qualification  of  voters.  If 
the  gentleman  wished  to  raise  that  question  he  thought  it  would  be 
better  for  him  to  present  it  in  an  independent  resolution,  and  not 
in  the  form  of  an  amendment  of  this,  which  does  not  involve  the 
subject. 

The  Chairman,  in  reply  to  the  suggestion  that  the  resolution  was 
not  divisible,  said  that  the  first  clause  of  the  amendment,  which 
related  to  the  qualification  of  voters,  should  be  put  so  as  not  to  in- 
clude the  striking  out.  The  amendment  would  in  that  way  be 
susceptible  of  division. 

Mr.  Morton  of  Dorchester  was  apprehensive  that  the  committee 
would  again  fall  into  the  embarrassment  they  had  so  often  expe- 
rienced, from  having  too  many  propositions  blended  together.  The 
resolution  itself  was  a  simple  proposition ;  the  amendment  contained 
two.  The  part  relating  to  the  qualification  of  electors  had  nothing 
to  do  with  the  subject  of  the  resolution,  and  was  out  of  order  ;  the 
other  part,  respecting  the  number  of  senators,  was  in  order. 

Mr.  Keyes  then  offered,  as  a  substitute  for  the  resolution  before 
the  committee,  two  resolutions  embracing  the  two  parts  of  his 
amendment ;  having  first  withdrawn  his  amendment. 

Mr.  Morton  said  the  resolution  respecting  the  qualification  ought 
to  be  first  offered  in  convention,  and  there  referred  to  a  committee 
of  the  whole. 

The  Chairman  said  that  as  it  related  to  a  new  subject,  not 
touched  in  the  report  of  the  standing  committee,  it  was  out  of  order, 
and  that  the  other  resolution  was  in  order. 

Mr.  Keyes  varied  his  proposition,  and  moved  to  strike  out  "six," 
and  insert  "  one,"  so  as  to  have  the  number  of  senators  thirty-one. 

Mr.  Childs  thought  that  the  principle  of  apportionment  should  be 
first  settled.  If  that  were  settled  upon  the  basis  of  property,  ac- 
cording to  the  views  of  the  select  committee,  he  should  be  ready  to 
proceed  in  settling  the  number  of  senators.  He  thought  the  present 
representation  did  not  give  a  fair  representation  of  property.  The 
principle  of  representation  was  an  important  question,  and  it  ought 
to  be  first  settled.  The  House  had  not  expected  to  meet  it  to  day, 
and  were  not  prepared  for  it.  He  therefore  moved  that  the  com- 
mittee rise. 

The  motion  was  negatived. 

Mr.  Foster  of  Littleton  said  he  was  not  prepared  to  act  on  this 


MASSACHUSETTS    CONVENTION.  235 

subject,  as  it  was  not  yet  determined  in  what  manner  the  counsel- 
lors were  to  be  chosen.  They  would  probably  be  elected  by  a 
general  ticket  from  the  people  at  large,  or  by  the  Legislature,  out  of 
the  senate.  In  the  latter  case  thirty-one  would  be  too  small  a  num- 
ber for  the  senate. 

Mr.  Quincy  rose  on  a  point  of  order.  It  was  a  very  natural 
difficulty  with  the  gentleman  from  Pittsfield  how  to  bring  forward 
his  proposition.  But  if  gentlemen  would  analyze  a  little,  all  diffi- 
culty would  be  removed.  A  single  subject  was  now  before  the 
committee.  All  that  a  gentleman  has  to.do,  is  to  offer  a  resolution  in 
convention,  and  have  it  referred  to  such  committee  of  the  whole  as 
he  pleases  ;  and  then,  when  the  house  is  in  that  committee,  he  can 
move  to  consider  first  his  proposition.  This  is  the  parliamentary 
and  most  expeditious  course.  It  was  very  true,  as  the  gentleman 
from  Littleton  had  observed,  that  there  was  a  connection  between 
the  present  subject  and  that  of  the  council;  and  the  gentleman 
might  move  in  convention,  to  have  the  subject  of  the  council  re- 
ferred to  this  committee. 

Mr.  Flint  moved  to  pass  over  the  first  resolution,  and  take  up 
the  next.  He  thought  the  propriety  of  adopting  this  depended  upon 
the  decision  which  should  be  made  upon  the  other  proposition. 

Mr.  Bond  thought  that  the  difficulty  which  presented  itself  in  this 
resolution  would  occur  again  in  the  next,  or  at  least  in  the  third, 
and  that  nothing  would  be  gained  by  passing  to  the  consideration 
of  the  others.  It  appeared  to  be  necessary  that  the  question  men- 
tioned by  the  gentleman  from  Pittsfield,  What  should  be  the  princi- 
ple of  apportionment,  should  be  settled  before  the  committee  could 
proceed  profitably  in  the  discussion  of  the  remaining  propositions. 
To  come  to  this  question  it  would  be  necessary  that  the  committee 
should  rise,  that  a  proposition  might  be  made  and  brought  before 
the  House.     He  therefore  moved  that  the  committee  rise. 

Mr.  Austin  of  Boston  inquired  whether  the  motion  was  in  order, 
as  the  committee  had  made  no  progress  since  the  last  motion  to 
rise. 

The  Chairman  replied  that  it  was. 

The  motion  to  rise  was  then  put  and  decided  in  the  affirmative — 
192  to  62. 

The  committee  reported  progress,  and  asked  leave  to  sit  again ; 
which  was  granted. 

Mr.  Blake  of  Boston  moved  that  a  committee  be  appointed  to 
review  the  journal,  and  report  what  order  should  be  pursued  in 
taking  up  business. 

Mr.  Leland  of  Roxbury  opposed  the  motion  ;  he  could  see  no 
advantage  to  be  derived  from  it. 

Mr.  Blake  said  he  could  only  say  that  such  a  committee  had 
sometimes  been  appointed  in  Congress,  and  had  been  found  useful ; 
an  ounce  of  experience  was  better  than  a  ton  of  speculation. 

Mr.  Mattoon  of  Amherst  opposed  the  motion,  and  inquired  whether 
the  report  of  the  committee  on   the  declaration  of  rights  was  the 


236  MASSACHUSETTS     CONVENTION. 

order  of  the   day  for  Monday.     If  so,  he  should  move  to  adjourn. 
They  had  done  nothing  yet. 

The  President  said  the  unfinished  business  of  this  day  would 
be  the  order  of  the  day  for  Monday,  and  would  probably  take  up 
one  or  two  days.  Next  in  order  would  be  the  report  on  the  judiciary, 
and  then  the  report  on  the  declaration  of  rights. 

Mr.  GIuinct  said  the  rules  of  the  Convention  required  that  the 
unfinished  business  of  one  day  should  be  the'  order  of  the  day  for 
the  next.  That  the  subject,  which  they  had  been  discussing  in 
committee,  was  the  most  important  of  an^  on  which  they  should 
be  called  to  act,  and  he  hoped  it  would  come  on  again  on  Monday. 
But  if  gentlemen  should  not  wish  to  take  it  up  on  that  day,  the 
course  would  be  to  move  that  it  lie  on  the  table.  Gentlemen  had 
said  we  had  done  nothing  to  day.  He  thought  they  had  done  a 
great  deal.  They  had  got  into  the  heart  of  the  subject  of  most  im- 
portance ;  and  particularly,  was  it  doing  a  great  deal,  to  have  heard 
the  able  elucidation,  which  was  made  by  the  chairman  of  the  com- 
mittee on  that  subject. 

Mr.  Blake  withdrew  his  motion. 

Mr.  Webster  said  there  was  an  inconvenience  which  arose  from 
the  numbers  in  the  resolutions  reported  by  the  select  committee 
being  filled,  instead  of  being  reported  in  blank.  In  the  resolution 
which  had  been  before  the  committee  of  the  whole  this  morning, 
the  question  could  not  be  taken  on  the  number  thirty-six — it  could 
only  be  taken  on  accepting  the  resolutions,  and  when  accepted  it 
could  not  be  amended.  If  thirty-six  were  struck  out  for  the  purpose 
of  inserting  another  number,  it  could  not  be  again  inserted.  This 
had  presented  an  obstacle  this  morning.  But  the  object  of  the  gen- 
tleman from  Pittsfield  might  have  been  effected  by  moving  to  amend 
the  resolution  by  adding  the  words,  "to  be  chosen  in  districts,  in 
proportion  to  their  respective  population." 

Mr.  GIuincy,  professing  great  deference  to  the  gentleman's  talents 
and  high  respect  for  his  opinions  generally  on  questions  of  order, 
was  obliged  in  this  case  to  differ  from  him.  He  said  the  committee 
ought  to  confine  themselves  to  the  business  specifically  committed 
to  them — that  new  subjects  ought  not  to  be  introduced  in  com- 
mittee, but  should  be  proposed  in  convention  and  there  referred  to 
the  committee. 

•Mr.  Morton  said  he  had  moved  for  the  committee  to  rise,  in  order 
that  gentlemen  might  make  their  motions  in  Convention,  and  have 
them  referred. 

Mr.  Enoch  Mudge  of  Lynn  moved  for  a  reconsideration  of  the 
vote  passed  yesterday,  adopting  the  fourth  resolution  reported  by 
the  committee  on  the  mode  of  submitting  amendments  of  the  con- 
stitution to  the  people.  He  said  he  was  not  dissatisfied  with  it 
himself,  but  some  others  were,  and  one  gentleman  had  intended  to 
vote  with  the  majority,  for  the  purpose  of  moving  a  reconsideration, 
but  not  understanding  the  question,  when  it  was  put,  had  voted  the 
wrong  way. 


MASSACHUSETTS     CONVENTION.  237 

Mr.  Leland  inquired  if  the  resolution  had  had  two  readings. 

The  President  said  it  was  not  necessary,  as  it  did  not  propose 
any  alteration  of  the  constitution. 

Mr.  Bond  wished  the  gentleman,  who  made  the  motion,  would 
give  some  reasons  for  reconsidering. 

The  President  repeated  what  the  gentleman  had  stated  on 
making  the  motion. 

Mr.  Childs  said  he  was  not  much  dissatisfied  with  the  resolution, 
and  did  not  know  that  he  should  not  like  it,  when  he  knew  what 
amendments  were  to  be  proposed  to  the  people.  It  depended  on 
this  circumstance  ;  and  if  the  vote  should  be  reconsidered,  he  should 
only  want  the  question  on  the  resolution  to  be  postponed. 

Mr.  Morton  opposed  the  reconsideration.  He  said,  if  this  resolu- 
tion had  been  adopted  in  the  beginning,  it  would  have  saved  the 
Commonwealth  ten  thousand  dollars.  He  said  it  would  not  pre- 
clude any  amendments  to  the  constitution. 

Mr.  Fay  of  Cambridge  was  as  much  in  favor  of  taking  a  decisive 
step  on  this  subject,  as  the  gentleman  last  up ;  but  he  was  not  sat- 
isfied, that  the  mode  proposed  in  the  resolution,  for  submitting  the 
amendments,  was  the  best.  There  was  another  mode,  which  he 
thought  preferable.  The  intention  of  the  committee  was  to  give 
the  people  a  fair  chance — to  let  them  adopt  such  amendments  as 
they  approved,  and  reject  such  as  they  disliked.  He  thought  the 
people  would  be  better  satisfied  with  a  new  draft.  They  would 
not  want  to  discuss  every  amendment — they  sent  us  here  to  do 
their  work  ;  and  for  himself,  as  one  of  the  people,  he  should  prefer 
taking  his  chance,  in  voting  upon  all  the  constitution  together,  in 
the  same  manner  as  the  constitution  of  1780  was  adopted. 

Mr.  Bliss  said  the  gentleman  was  in  an  error  ;  the  separate  parts 
were  acted  upon  by  the  people,  and  there  were  an  hundred  excep- 
tions, by  different  towns,  to  different  parts.  He  had  examined  the 
records  in  the  secretary's  office. 

Mr.  Fay  said  it  might  be  so  ;  he  had  inferred  that  the  whole  of  it 
was  taken  up  together  by  the  people,  from  its  having  the  appear- 
ance of  being  one  work.  He  said  the  people  were  not  so  capable 
in  their  town  meetings  of  forming  a  constitution  as  the  Convention, 
or  of  seeing  the  connection  of  the  different  parts  ;  and  if  they  should 
adopt  some,  and  reject  others,  the  intention  of  the  Convention  might 
be  frustrated.  He  observed,  that  of  the  amendments  appended  to 
the  constitution  of  the  United  States,  some  were  accepted  and  others 
not.  This  mode  of  submitting  them  tended  to  produce  confusion, 
and  it  would  require  a  lawyer  to  tell  what  was,  and  what  was  not, 
a  part  of  the  constitution.  The  Convention  was  not  a  court  of  errors 
to  correct  anything  which  might  become  amiss  in  consequence  of 
the  people  voting  on  the  amendments  separately ;  the  whole  must 
be  done  now.  There  was  no  necessity  for  the  people  adopting 
them  in  detail  ;  they  would  thus  lose  the  benefit  of  the  wisdom  of 
the  Convention.  It  would  have  been  as  well  to  have  saved  the  ex- 
pense of  a  Convention,  and  have  said  that  all  the  propositions  for 


238  MASSACHUSETTS     CONVENTION. 

amendments,  which  have  appeared  in  the  Boston  newspapers  for  the 
last  six  months,  should  be  submitted  to  the  people,  and  those  which 
a  majority  should  adopt,  should  make  a  part  of  the  constitution. 
He  thought  these  reasons  overbalanced  the  reasons  on  the  side  of 
the  report.  He  added,  that  the  mode  of  numbering  the  amendments 
would  be  likely  to  cause  mistakes.  He  wished  the  motion  for  re- 
consideration might  prevail. 

Mr.  Foster  thought  it  unfair  to  move  for  a  reconsideration  on 
Saturday,  when  the  numbers  were  so  much  thinned.  It  looked  like 
an  attempt  to  smuggle  a  proposition  through  the  House.  He  should 
therefore  repeat  the  motion  for  an  adjournment. 

Mr.  Vaknum  wished  the  gentleman  to  withdraw  his  motion,  in 
order  that  he  might  move  to  postpone  the  subject  of  reconsideration 
until  Tuesday. 

Mr.  Foster  gave  way. 

The  question  was  taken  to  postpone  and  decided  in  the  affirma- 
tive—209  to  53. 

Mr.  Keyes  offered  the  following  resolution : 

Resolved,  That  it  is  expedient  so  to  amend  the  constitution,  as  to  provide  that  no 
pecuniary  qualification  shall  be  required  for  electors  of  any  officers  under  this  gov- 
ernment. 

Ordered  to  be  referred  to  the  committee  of  the  whole  on  the 
senate,  <fcc— 220  to  18. 

Mr.  Childs  gave  notice  that  on  Monday  he  should  introduce  a 
resolution  for  apportioning  the  senate  on  the  basis  of  population. 

Mr.  Nichols  offered  the  following  resolution : 

Resolved,  That  it  is  expedient  so  to  amend  the  constitution,  as  to  provide  that  no 
pecuniary  qualification  shall  be  required,  to  enable  persons  to  hold  the  offices  of  sen- 
ator or  representative. 

Ordered  to  be  referred  to  the  committee  of  the  whole  on  the 
senate,  &c. — 148  to  90. 

Mr.  Wells  of  Boston  offered  as  an  amendment  to  the  report  of 
the  select  committee  on  the  senate,  &c,  a  resolution  proposing  that 
counsellors  and  senators  shall  be  chosen  as  they  now  are,  and  that 
the  persons  designated  to  serve  as  counsellors  shall  be  holden  to 
serve  as  such,  unless  they  shall  give  a  sufficient  reason  for  declining, 
in  which  case  the  Legislature  shall  proceed  to  supply  the  vacancies 
occasioned  by  their  resignation. 

Mr.  Webster  said  this  amendment  could  not  be  received,  as  that 
report  was  before  the  committee  of  the  whole. 

Mr.  Wells  said  if  he  was  not  in  order,  he  would  withdraw  the 
motion,  for  the  purpose  of  renewing  it  at  a  proper  time. 

It  was  then  moved,  that  when  the  House  adjourned,  it  should  ad- 
journ to  Monday  at  11  o'clock — negatived — 82  to  199. 

It  was  then  voted  to  adjourn  to  Monday  at  10  o'clock. 

The  House  adjourned. 


MASSACHUSETTS    CONVENTION.  239 

Monday,  December  11. 

The  House  met  at  10  o'clock.     The  journal  of  Saturday  was  read. 

Mr.  Webster  of  Boston  moved  that  the  report  of  the  select  com- 
mittee on  the  declaration  of  rights  be  recommitted  to  the  same  com- 
mittee, with  instructions  to  present  the  matter  of  the  several  resolu- 
tions recommended  by  them  in  a  new  form ;  so  as  to  state  the  sub- 
stance and  effect  of  the  several  alterations  to  the  constitution  therein 
proposed. 

The  above  motion  was  adopted,  the  committee  of  the  whole,  to 
which  that  report  had  been  referred,  having  been  first  discharged 
from  the  consideration  of  the  same. 

Mr.  Leland  of  Roxbury  offered  three  resolutions,  in  substance  as 
follows,  viz. :  that  it  is  expedient  so  to  alter  the  constitution,  as  to 
provide,  1st.  That  persons  be  elected  by  the  inhabitants  of  this 
Commonwealth  qualified  to  vote,  to  be  counsellors  and  senators. 
2d.  That  the  electors  shall  designate — of  the  number  to  be  counsel- 
lors. 3d.  That  the  persons  so  designated,  shall  serve  as  counsellors, 
(ceasing  to  be  senators)  and  the  rest  shall  constitute  the  senate. 

Mr.  Leland  moved  that  the  resolutions  be  referred  to  the  com- 
mittee of  the  whole  upon  the  senate,  &c.     Negatived. 

They  were  then  referred  to  the  committee  of  the  whole  upon  the 
resolutions  offered  on  a  former  day  by  Mr.  Dearborn,  relating  to 
the  lieutenant  governor,  &c. 

Mr.  Morton  offered  a  resolution  declaring  that  the  constitution 
ought  to  be  so  amended  as  to  provide  that  there  shall  be  annually 
chosen  by  the  freeholders  and  other  inhabitants  of  each  senatorial 
district  one  person  residing  in  the  district  to  be  returned  as  counsel- 
lor, and  that  of  the  persons  so  returned,  of  more  than  seven,  the  two 
houses  of  the  General  Court  by  joint  ballot  shall  elect  seven  to  serve 
as  counsellors.  If  there  be  not  seven  returned,  the  deficiency  to  be 
supplied  by  joint  ballot  from  the  two  persons  in  each  district  who 
have  the  greatest  number  of  votes.  And  if  a  vacancy  shall  occur, 
it  shall  be  supplied  by  joint  ballot  of  the  two  houses  from  the  people 
at  large. 

The  resolution  was  referred  to  a  committee  of  the  whole. 

Mr.  S.  A.  Wells  offered  a  resolution  purporting  that  it  is  proper 
and  expedient  so  to  amend  the  constitution,  that  any  person  returned 
as  counsellor  and  senator  shall  be  holden  to  serve  as  counsellor,  if 
chosen  to  that  office  by  the  two  houses  of  the  Legislature,  in  the 
manner  prescribed  in  the  constitution.  He  stated  that  his  object  in 
moving  this  resolution  was  to  restore  the  spirit  of  the  old  constitu- 
tion. He  considered  it  a  defect  in  the  constitution,  that  the  persons 
elected  from  the  senate  were  permitted  to  decline  the  appointment 
to  the  council  and  to  continue  to  hold  their  seats  in  the  senate. 

A  motion  to  commit  this  resolution  to  a  committee  of  the  whole 
on  the  senate  was  negatived.  It  was  then  referred  to  the  committee 
of  the  whole  on  Mr.  Dearborn's  resolution. 

Mr.  Leland  of  Roxbury  moved  that  the  report  of  the  select  com- 
mittee on  the  subject  of  the  council,  agreed  to  in  committee  of  the 


240  MASSACHUSETTS    CONVENTION. 

whole,  should  be  recommitted  to  the  committee  of  the  whole,  on 
Mr.  Dearborn's  resolutions.     Agreed  to. 

Senate  and  House  of  Representatives. — The  Convention  then 
went  into  committee  of  the  whole  on  the  unfinished  business  of 
Saturday,  Mr.  Webster  in  the  chair. 

The  first  resolution,  purporting  that  it  is  expedient  so  to  alter  the 
constitution  that  the  senate  shall  consist  of  thirty-six  persons,  was 
stated  to  be  under  consideration. 

Mr.  Dana  had  no  desire  to  see  the  senate  reduced  from  forty,  the 
present  number.  He  considered  the  principle  of  a  balance  between 
the  two  houses,  an  important  one,  and  it  was  a  principle  that  had  been 
sanctioned  with  great  unanimity  by  the  Convention.  The  present 
number  he  thought  was  not  larger  than  would  be  necessary  to  secure 
a  proper  balance  against  so  numerous  a  house  of  representatives. 
He  should,  therefore,  prefer  retaining  that  number.  But  he  pre- 
sumed the  committee  had  fully  considered  the  subject,  and  he  would 
not  propose  any  amendment  of  the  resolution.  He  should,  however, 
be  decidedly  opposed  to  any  further  reduction. 

Mr.  Blake  of  Boston  said  a  mistake  had  too  long  prevailed  in  re- 
lation to  the  senate.  It  never  was  contemplated  by  the  framers  of 
the  constitution,  to  have  more  than  thirty-one  senators.  But  by  an 
abuse,  (he  did  not  mean  moral  turpitude)  the  senate  had  been  en- 
larged, and  the  mode  of  choosing  counsellors  altered.  That  thirty- 
one  was  the  number  originally  intended  for  the  senate,  was  evident 
from  the  quorum  being  fixed  at  sixteen.  He  said,  that  in  no  as- 
sembly of  the  kind,  consisting  of  about  the  same  number,  in  any  of 
the  United  States,  was  the.  quorum  fixed  at  less  than  a  majority  of 
the  whole  number.  He  was  however  entirely  satisfied  with  the 
number,  thirty-six,  to  which  it  was  proposed  to  enlarge  the  senate, 
as  being  a  convenient  number,  and  capable  of  a  great  many  divis- 
ions ;  as  had  been  mentioned  before,  by  his  Rev.  colleague,  (Mr. 
Freeman.) 

Mr.  S locum  of  Dartmouth  said  he  had  been  waiting  with 
patience,  expecting  to  be  enlightened  by  the  discussion,  but  the 
more  he  heard  from  the  gentleman  who  used  to  subscribe  to  his 
opinions  the  more  he  was  embarrassed,  and  he  was  compelled  to 
differ  from  the  high  gentleman  with  whom  he  used  to  side.  He 
thought  the  number  thirty-six,  larger  than  was  necessary  for  the 
senate.  The  senate  of  the  United  States  consisted  originally  of 
but  twenty-six,  that  of  New  Hampshire  consists  of  twelve,  and 
that  of  Rhode  Island  of  ten.  He  presumed  these  numbers  were 
adequate  for  the  object  designed.  Gentlemen  seemed  to  think  that 
Ave  wanted  as  many  now,  as  we  did  before  the  separation  of  Maine. 
It  had  been  said  that  the  expense  of  having  thirty-six  was  but  lit- 
tle ;  but  these  littles  made  a  considerable  sum  for  their  constituents 
to  pay.  The  gentleman  from  Groton  wanted  a  larger  number  than 
thirty-six,  in  order  to  balance  the  number  in  the  house  of  represen- 
tatives ;  but  the  majority  of  the  senate  would  always  be  a  check, 
whether  the  whole  number  were  large  or  small.     He  thought  thir- 


MASSACHUSETTS    CONVENTION.  241 

ty-six  was  a  supernumerary  number — they  were  sent  there  to  make 
a  constitution  congenial  to  the  genius  of  the  people — they  must 
consult  economy.     He  should  vote  for  thirty-one. 

Mr.  Leland  could  see  no  objection  to  the  number,  provided  the 
senators  were  to  be  chosen  distinct  from  the  counsellors.  But  if  the 
council  were  to  be  elected  from  the  persons  returned  as  senators,  he 
thought  the  number  was  too  small.  He  was  in  favor  of  choosing 
the  council  and  senate  together,  and  for  that  reason  opposed  to  the 
number  stated  in  the  resolution.  But  with  a  View  that  the  question 
respecting  the  mode  of  choosing  the  council  might  be  first  settled, 
he  moved  that  the  committee  should  pass  to  the  second  resolution. 

Mr.  Pre scott  said  that  if  the  committee  were  to  pass  from  one 
resolution  to  another  at  the  call  of  any  member,  nothing  would 
ever  be  settled.  The  report  was  predicated  upon  the  supposition 
that  the  senate  and  council  should  be  chosen  independently  of  each 
other.  If  this  resolution  should  now  be  adopted,  and  it  should  be 
afterwards  determined  to  choose  the  council  from  the  senate,  the 
decision  now  made  might  be  reconsidered  and  the  number  in- 
creased. 

The  motion  to  pass  over  the  first  resolution  was  negatived. 

The  question  on  acceptance  of  the  resolution,  was  decided  in  the 
affirmative,  195  to  113. 

The  second  resolution  was  then  read  and  agreed  to. 

The  third  resolution  having  been  read, 

Mr.  Dana  wished  to  hear  from  the  chairman  of  the  committee 
an  exposition  of  their  reasons  for  proposing  it. 

Mr.  Prescott  said  that  the  resolution  had  been  agreed  to  almost 
unanimously,  by  the  select  committee.  It  did  not  forbid  the  divis- 
ion of  counties  into  new  counties,  but  merely  the  division  of  them 
in  forming  senatorial  districts.  It  was  thought  important  that  it 
should  not  be  left  in  the  power  of  the  Legislature  to  make  a  divis- 
ion for  a  temporary  purpose.  They  saw  no  inconvenience  in  the 
restriction,  but  on  looking  back  they  perceived  that  great  inconven- 
ience had  been  felt  from  the  power  of  division. 

Mr.  Dearborn  moved  that  the  third  resolution  should  be  passed 
over,  with  a  view  that  the  gentleman  from  Pittsfield  might  have  an 
opportunity  to  bring  forward  his  motion  offered  on  Saturday,  for 
apportioning   the   senate   according   to  population. 

Mr.  Lawrence  was  for  passing  over  the  resolution.  One  reason 
for  proposing  the  limitation  in  the  resolution  was  founded  on  the 
restriction  provided  in  another  resolution,  that  no  district  should 
have  more  than  six  senators.  This  restriction  ought  to  take  place 
whether  the  senators  were  apportioned  on  population  or  on  prop- 
erty. 

The  motion  was  negatived. 

Mr.    Sibley  of   Sutton   opposed  the  resolution.     Some    of   the 

smaller  counties  might  hereafter  be  disposed  to  unite,  and   it  might 

likewise  be  desirable   to  divide   some  of  the   larger  counties.     The 

county  from  which  he  came,  (Worcester)  he  thought,  would  like 

31 


242  MASSACHUSETTS     CONVENTION. 

to  be  divided.     It   would  therefore  be   inconvenient  to  limit  the 
number  of  districts  to  ten. 

The  question  was  then  taken  on  the  third  resolution  and  decided 
in  the  affirmative — 193  to  132. 

The  fourth  resolution  was  passed  over  on  the  suggestion  of  Mr. 
Varnum,  in  order  to  give  an  opportunity  to  Mr.  Childs,  (who  was 
prevented  by  illness  from  attending)  to  make  the  motion  of  which 
he  gave  notice  on  Saturday. 

The  fifth,  sixth  and  seventh  resolutions  were  adopted  without  a 
division. 

The  eighth  being  the  first  of  those  relating  to  the  representatives 
having  been  read, 

Mr.  Longley  of  Bolton  offered  a  proposition  as  a  substitute  for  the 
resolutions  from  the  eighth  to  the  fourteenth  inclusive,  that  250  ratea- 
ble polls  should  entitle  a  town  to  one  representative,  625  to  two,  and 
so  on,  making  375  rateable  polls  the  mean  increasing  ratio — that  all 
the  towns  now  incorporated,  although  having  less  than  250  rateable 
polls,  should  nevertheless  have  one  representative  each,  but  any 
town  hereafter  incorporated  should  have  150  rateable  polls  to  enti- 
tle it  to  one  representative — that  towns  having  less  than  250  rate- 
able polls  should  be  exempt  from  a  fine,  unless  they  neglected  for 
more  than  two  years  in  succession  to  send  a  representative — and 
that  the  representatives  should  be  paid  by  the  towns,  unless  other- 
wise provided  by  law.  Mr.  L.  observed  that  the  phraseology  of 
his  resolution,  except  in  the  numbers,  was  copied  from  the  present 
constitution.  He  thought  the  ratio  in  the  report  was  too  high ;  be- 
tween 20  and  30  towns  in  the  county  of  Worcester  would  be  de- 
prived of  a  representation,  except  every  other  year — taking  the  cen- 
sus of  1810  for  the  guide.  The  number  in  the  house  would  be 
kept  down,  by  removing  the  fine  from  the  small  towns;  which 
would  probably  not  send  a  representative  oftener  than  every  other 
year.  He  could  see  no  other  way  of  saving  the  rights  of  the  small 
towns. 

Mr.  Freeman  of  Boston  rose  to  present  some  arithmetical  calcu- 
lations to  show  the  principles  on  which  the  committee  proceeded. 
In  the  principle  assumed  there  were  two  or  three  important  altera- 
tions of  the  principle  of  the  present  constitution.  The  report  pro- 
posed a  new  ratio  of  representation  by  which  the  number  was  re- 
duced— and  that  no  town  shall  have  more  than  one  representative 
unless  upon  a  population  equal  to  the  mean  ratio.  The  ratio  by  the 
present  constitution,  was  formed  by  taking  150,  the  number  which 
gives  one  representative,  and  adding  to  it  one  half.  The  ratio  pro- 
posed is  obtained  by  taking  the  number  which  gives  one  represen- 
tative and  doubling  it.  To  show  that  the  last  mode  was  just  and 
the  other  not,  he  supposed  three  cases.  1st.  That  150  rateable 
polls  elect  one — 300  two — 450  three  &c. — making  no  allowance 
for  the  surplus  numbers.  Then  the  mean  number  for  electing  one 
in  towns  where  only  one  is  chosen  will  be  225,  and  in  towns  where 
two  are  chosen  187^ — where  three  are  chosen   175  &c.    2d.  The 


MASSACHUSETTS    CONVENTION.  243 

ratio  of  the  present  constitution — 150  rateable  polls  elect  one  repre- 
sentative— 375  two — 600  three,  &c.  The  mean  number  electing 
one  representative,  where  only  one  is  chosen,  is  150  added  to  half 
the  increasing  number,  viz.,  262£.  The  mean  number  in  towns 
electing  two  is  375  added  to  half  the  increasing  number,  making 
487 1,  or  243  for  each  member.  The  mean  number  in  towns  elect- 
ing three  is  600  added  to  half  the  increasing  number,  making  712| 
or  237|  for  each  member.  The  average  number  for  electing  each 
representative  is  therefore  greatest  in  towns  that  elect  but  one  and 
gradually  diminishes  as  the  number  to  which  the  town  is  entitled 
increases.  3d.  The  just  ratio  which  is  that  assumed  in  the  report — 
150  rateable  polls  elect  one  representative — 450  two — 750  three, 
&c. — the  increasing  number  being  300,  and  the  mean  surplus  150. 
Then  the  mean  number  electing  one,  where  only  one  is  chosen,  is 
equal  to  150  added  to  half  the  increasing  number,  making  300. 
The  mean  number  electing  two  will  be  equal  to  450  added  to  half 
the  increasing  number,  making  600,  or  300  for  each.  The  mean 
number  in  towns  electing  three  will  be  750  added  to  half  the  in- 
creasing number,  making  900,  or  300  for  each  representative — and 
whatever  number  are  chosen  from  any  one  town,  the  average  num- 
ber of  rateable  polls  electing  each  will  be  the  same.  These  prin- 
ciples he  illustrated  in  a  variety  of  ways.  The  last  principle  the 
select  committee  had  adopted,  and,  as  it  was  mathematically  accu- 
rate, he  presumed  it  would  be  adopted  by  the  Convention.  It  was 
applicable  to  any  assumed  number.  The  committee  had  assumed 
1200  inhabitants.  It  was,  however,  deviated  from  in  reference  to 
the  small  towns,  from  necessity,  and  a  different  provision  was  made 
for  them.  He  mentioned  several  schemes  which  had  been  offered 
in  the  committee  for  districting  the  State  for  the  choice  of  represen- 
tatives, which  had  been  rejected  by  them.  He  stated  further,  that 
if  the  present  number  of  rateable  polls  for  giving  one  representa- 
tive were  retained,  and  the  correct  increasing  ratio  applied,  it  would 
reduce  the  house  from  512  members  to  414. 

Mr.  Martin  of  Marblehead  said  that  he  did  not  like  either  propo- 
sition. He  said  that  on  examining  the  last  census,  for  we  were 
obliged  to  take  the  last  census  for  our  motto,  he  had  found  that  if 
1200  inhabitants  were  required  to  give  a  representative  there  would 
be  138  towns  which  would  be  deprived  of  a  representation.  He 
believed  that  this  would  be  enough  to  set  aside  the  whole  doings 
of  the  Convention,  if  they  were  submitted  to  the  people  together. 
If  he  could  have  his  own  way  about  it,  he  would  give  every  town 
that  is  now  entitled  to  a  representative,  one.  And  the  Convention 
might  require  five  hundred  or  a  thousand  or  any  other  number 
of  rateable  polls  to  entitle  any  town  to  another,  if  they  were  a 
mind  to. 

Mr.  Prescott  said  that  the  mode  proposed  by  the  gentleman  from 
Bolton,  would  give  a  very  numerous  house.  Every  town  would 
have  one,  and  this  would  give  two  hundred  and  ninety-eight  mem- 
bers.     The  additional  number  for  the  larger  towns  would  make 


244  MASSACHUSETTS    CONVENTION. 

more  than  four  hundred.  If  the  proposition  of  the  committee 
should  be  adopted,  the  small  towns  would  have  the  least  reason  to 
complain.  They  would  have  much  the  largest  proportion  of  repre- 
sentation. The  towns  entitled  to  send  a  representative  every  other 
year  will  have  a  representation  equivalent  on  an  average  to  one  mem- 
ber every  year,  for  1633  inhabitants.  The  whole  population  of 
the  towns  of  less  than  1200  inhabitants,  is  about  121,000.  These 
towns  will  be  now  represented  every  year  by  74  members,  but  their 
population  on  the  principle  applicable  to  large  towns  would  give 
but  51  members.  There  are  18  towns  which  have  over  3600  in- 
habitants each,  118,000  in  all.  These  18  towns  will  have  but  55 
representatives.  There  are  106  towns  of  a  population  between  1200 
and  2400.  These  have  106  representatives,  but  their  whole  pop- 
ulation, if  all  in  one  town,  or  distributed  in  several  large  towns, 
would  give  but  70  representatives.  The  whole  computation  goes 
on  a  principle  that  diminishes  the  proportion  of  influence  of  the 
large  towns,  and  gives  a  large  increase  to  that  of  the  small  towns. 
It  is  indispensable,  unless  we  would  have  a  house  of  400  members 
at  least,  either  to  class  the  small  towns,  or  to  district  them. 

Mr.  Lawrence  said  the  amendment  proposed  that  polls  should  be 
adopted  as  the  basis  of  representation  instead  of  population.  He 
presumed  this  basis  never  would  have  been  adopted,  if  there  had 
been  at  the  time  of  the  framing  of  the  constitution  any  provision 
for  the  periodical  enumeration  of  the  inhabitants.  Polls  did  not  be- 
fore that  time  form  the  basis  of  representation.  By  the  laws  of 
1692  and  1776,  the  number  of  freeholders  was  the  basis.  There 
was  at  the  time  of  the  formation  of  the  constitution  no  mode  of  as- 
certaining the  number  of  inhabitants ;  but  there  was  of  rateable 
polls.  It  would  be  found  that  from  particular  causes,  the  number 
of  rateable  polls  was  not  proportioned  to  the  number  of  inhabitants. 
In  the  county  of  Suffolk,  for  instance,  there  were  two  thousand 
more  rateable  polls  than  in  Berkshire,  though  in  the  latter  county 
the  population  was  greatest.  The  Legislature  also  may  alter  the 
number  of  rateable  polls,  but  cannot  the  number  of  inhabitants. 
They  may  provide  by  law  for  taxing  all  polls  over  10  years  of 
age,  or  that  only  those  over  21  or  50,  should  be  taxed.  The  de- 
termining the  number  of  polls  is  left  to  the  towns,  and  is  liable  to 
fraud. 

The  question  on  the  amendment  was  taken  and  decided  in  the 
negative. 

Mr.  Hoyt  of  Deerfield  proposed  to  amend  the  resolution  by  ad- 
ding that  in  case  the  Legislature  should  hereafter  divide  or  set  off  a 
part  of  a  town  having  1200  inhabitants  and  upwards  so  as  to  reduce 
it  to  less  than  1200,  it  should  notwithstanding  retain  its  right  to  send 
a  representative.  Mr.  H.  said  that  setting  off  a  part,  might  materi- 
ally affect  ancient  towns  who  hold  dear  their  privileges.  Old  towns 
were  generally  averse  to  a  division,  and  he  was  aware  that  the  tend- 
ency of  this  resolution  was  to  prevent  a  division.  He  was  desirous 
however  of  protecting  the  rights  of  ancient  towns  whenever  a  di- 
vision should  take  place. 


MASSACHUSETTS    CONVENTION.  245 

Mr.  Locke  of  Billerica  thought  the  object  of  the  amendment 
was  perfectly  secured  by  the  report  as  it  stood.  If  a  town  which 
now  has  1200  inhabitants,  should  be  divided  by  the  Legislature,  it 
would  still  have  a  right  to  a  representative.  The  13th  resolution 
would  tend  to  prevent  the  cutting  up  of  towns  into  small  portions. 
Towns  have  sometimes,  heretofore,  been  divided  in  a  manner  inju- 
rious to  themselves,  and  which  would  now  be  glad  to  be  reunited. 
Mr.  Starkweather  was  in  favor  of  the  amendment,  though  he 
agreed  with  the  gentleman  from  Billerica,  that  the  right  would  not 
be  taken  away  by  a  division  within  the  ten  years.  After  ten  years, 
a  town  reduced  by  division  below  1200,  would  not  be  protected  in 
its  right  of  having  a  permanent  representative. 

Mr.  Draper  of  -Spencer  thought  the  amendment  ought  to  be 
adopted,  and  that  the  provision  should  be  extended  to  reductions 
from  other  causes. 

Mr.  Dana  thought  the  proposition  of  the  gentleman  from  Deer- 
field  was  founded  in  sound  sense.  There  was  a  disposition  in  most 
persons  to  preserve  large  establishments,  though  in  relation  to  towns 
and  counties  it  was  often  found  convenient  to  divide  them.  The 
operation  of  the  resolution,  if  not  amended,  would  increase  the  ob- 
stacles to  divisions  in  cases  where  they  would  be  convenient.  The 
amendment  would  make  the  resolution  more  perfect. 

Mr.  Hoyt  said  that  one  object  which  he  had  in  view  was,  that 
the  principle  should  be  definitely  settled,  so  that  there  should  be  no 
misunderstanding. 

Mr.  Pre scott  said  that  the  amendment  would  have  such  an 
effect  that  if  part  of  a  town  of  more  1200  inhabitants,  were  taken 
off  and  annexed  to  a  town  of  less  than  that  number,  so  as  to  raise  it 
above  1200,  both  would  acquire  a  right  to  be  permanently  repre- 
sented. If  it  could  be  divested  of  this  effect,  there  would  be  no  ob- 
jection to  it. 

Mr.  D.  Davis  said  the  object  of  the  mover  was  to  put  it  out  of 
the  power  of  the  Legislature,  by  the  division  of  a  town,  to  disfran- 
chise it  of  its  right  of  representation.  He  opposed  the  amendment, 
because  it  was  unnecessary.  If  the  amendment  proposed  by  the 
resolution  was  adopted,  every  town  of  1200  inhabitants  would  have 
a  vested  right  to  a  representative.  And  if  the  Legislature  should 
be  so  unwise  as,  by  dividing  it,  to  reduce  it  below  1200,  it  would 
not  divest  it  of  this  right. 

Mr.  Sullivan  of  Boston  differed  from  his  colleague,  who  spoke 
last.  He  said,  suppose  that  a  town,  by  taking  off  a  part,  is  reduced 
below  1200  inhabitants,  it  then  falls  into  the  classed  towns,  and  the 
town  which  is  increased  to  1200  inhabitants,  will  gain  a  represent- 
ative. The  constitution  will  not  give  a  vested  right  to  any  town, 
but  its  right  to  representation  will  change,  according  to  the  change 
in  the  number  of  its  inhabitants. 

Mr.  Stone  of  Stow  and  Boxborough  said  there  was  a  defect  in 
the  resolution,  inasmuch  as  it  made  no  provision  for  districts. 
There  were  only  six  towns  which  were  now  united  for  the  choice 


246  MASSACHUSETTS    CONVENTION. 

of  representatives,  and  in  these  cases  the  larger  towns  control  the 
smaller.  He  thought,  therefore,  that  these  towns  should  be  put 
upon  the  footing  of  other  small  towns  and  allowed  to  choose  alter- 
nately. But  as  the  resolution  now  stands,  there  -is  no  provision 
whatever  for  districts.  He  moved,  therefore,  to  amend  it  by  insert- 
ing the  words  "or  districts,"  after  the  word  "towns." 

The  motion  was  agreed  to. 

The  question  was  then  taken  on  the  eighth  resolution,  and  de- 
cided in  the  affirmative,  225  to  89.  The  ninth  resolution  was 
also  agreed  to. 

The  tenth  resolution  was  amended  by  inserting  "or  districts," 
for  conformity,  and  was  agreed  to.  The  eleventh  resolution  was 
agreed  to.  The  twelfth,  amended  for  conformity,  was  agreed  to. 
The  thirteenth  was  agreed  to. 

The  fourteenth  resolution  was  amended  by  substituting  "  shall  " 
for  "may,"  and  agreed  to.  The  fifteenth,  sixteenth,  and  seven- 
teenth, were  also  agreed  to. 

The  resolution  offered  by  Mr.  Keyes,  on  Saturday,  and  referred 
to  this  committee,  proposing  to  abolish  all  pecuniary  qualification 
in  electors  of  officers  under  this  government,  was  taken  up  by  the 
committee. 

Mr.  Nichols  of  South  Reading  moved  that  the  committee 
should  rise.     Negatived. 

Mr.  Parker  of  Charlestown  moved  to  pass  over  the  resolution,  on 
account  of  the  absence  of  the  mover.     Negatived. 

The  question  was  then  taken  on  the  resolution,  and  decided  in 
the  affirmative,  185  to  157. 

Mr.  Alvord  of  Greenfield  moved  a  reconsideration  of  the  last  vote. 

Mr.  Foster  of  Littleton  said  he  was  not  present  when  the  vote 
was  taken,  but  he  should  have  voted  in  the  affirmative.  He  would 
not  question  the  right  to  require  such  a  qualification,  but  he  had 
been  for  several  years  convinced  that  it  was  inexpedient  and  mis- 
chievous. Either  a  greater  amount  of  property  should  be  required, 
or  none  at  all.  Great  difficulties  were  occasioned  by  this  requisi- 
tion at  every  election,  and  continual  questions  asked  of  this  sort — 
what  property  have  you  ?  have  you  the  tools  of  any  trade  ?  Yes. 
What  else  ?  A  pair  of  steers  my  father  gave  me.  And  if  this  was 
not  enough,  then,  he  said,  a  note,  which  is  never  intended  to  be 
paid,  makes  up  the  balance.  Men  in  this  Commonwealth  become 
freemen  when  they  arrive  at  twenty-one  years  of  age ;  and  why 
oblige  them  to  buy  their  freedom  ?  They  perform  militia  duty — 
they  pay  a  tax  for  all  they  possess,  that  is,  their  polls.  Nothing,  he 
said,  of  so  little  consequence  in  itself,  was  so  ardently  desired,  as 
an  alteration  in  this  part  of  the  constitution.  Men  who  have  no 
property  are  put  in  the  situation  of  the  slaves  of  Virginia;  they 
ought  to  be  saved  from  the  degrading  feelings. 

Mr.  Bond  of  Boston  said  the  reverend  gentleman  was  mistaken 
on  one  point.  The  resolution  did  not  confine  the  right  of  voting  to 
those  who  paid  a  poll  tax ;  but  paupers  also  were  embraced  by  it. 


MASSACHUSETTS    CONVENTION.  247 

Mr.  Foster  said  he  did  not  mean  to  allow  them  the  privilege  of 
voting. 

Mr.  Dutton  said  he  was  in  favor  of  reconsideration.     He  had 
voted  against  the  resolution,  which,  it  is  now  understood  by  those 
who  supported  it,  ought  to  be  modified  so  as  to  exclude  paupers. 
Although  the  resolution  as  it  passed,  was  without  limitation,  still 
he  was  willing  to  consider  it,  as  modified  in  the  manner  suggested. 
It  introduced  a  new  principle  into  the  constitution.     It  was  univer- 
sal suffrage.     There  were  two  ways  of  considering  it.     1st.  As  a 
matter  of  right.     2d.   As  a  matter  of  expediency.     As  to  the  right, 
he  inquired  why  paupers  were  excluded  at  all,  if  it  was  a  common 
right ;  and  if  it  was  not,  then  there  was  the  same  right  in  the  com- 
munity to  exclude  every  man,  who  was  not  worth  two  hundred  dol- 
lars, as  there  was  to  exclude  paupers,  or  persons  under  twenty-one 
years.     In  truth  there  was  no  question  of  right ;  it  was  wholly  a 
question  of  expediency.     He  thought  it  expedient  to  retain  the  qual- 
ification in  the  constitution.     It  was  in  the  nature  of  a  privilege, 
and  as  such,  it  was  connected  with  many  virtues,  which  conduced 
to  the  good  order  of  society.     It  was  a  distinction  to  be  sought  for ; 
it  was  the  reward  of  good  conduct.     It  encouraged  industry,  econ- 
omy and  prudence ;  it  elevated  the  standard  of  all  our  civil  institu- 
tions, and  gave  dignity  and  importance  to  those  who  chose,  and 
those  who  were  chosen.     It  acted  as  a  stimulus  to  exertion  to  ac- 
quire what  it  was  a  distinction  to  possess.     He  maintained  that  in 
this  country,  where  the  means  of  subsistence  were  so  abundant,  and 
the  demand  for  labor  so  great,  every  man  of  sound  body  could  ac- 
quire the  necessary  qualification.     If  he  failed  to  do  this,  it  must 
be,  ordinarily,  because  he  was  indolent  or  vicious.     In  many  of  the 
states  a  qualification  of  freehold  was  required.     He  thought  that  a 
wise  provision  ;  and  if  any  alteration  was  to  be  made,  he  should  be 
in  favor  of  placing  it  there,  rather  than  upon  personal  property.     As 
it  was,  he  thought  it  valuable  as  a  moral  means,  as  part  of  that 
moral  force  so  essential  to  the  support  of  any  free  government.     He 
would  not  diminish  that,  for  in  the  same  proportion  it  should  be, 
from  any  cause  diminished,  would  the  foundations  of  the  republic 
be  weakened.     He  also  considered  it  as  unreasonable,  that  a  man 
who  had  no  property  should  act  indirectly  upon  the  property  of 
others.     If  gentlemen  would  look  to  the  statute  book,  to  the  busi- 
ness of  the  Legislature,  or  to  the  courts  of  law,  how  much  of  all  that 
was  done,  would  be  found  to  relate  to  the  rights  of  property.     It 
lay  at  the  foundation  of  the  social  state,  it  was  the  spring  of  all 
action  and  all  employment.     It    was   therefore,   he   apprehended, 
wholly  inequitable  in  its  nature,  that  men  without  a  dollar  should, 
in  any  way,  determine  the  rights  of  property,  or  have  any  concern 
in  its  appropriation.     He  also  contended,  that  the  principle  of  the 
resolution  was  anti-republican.     It  greatly  increased  the  number  of 
voters,  and  those  of  a  character  most  liable  to  be  improperly  influ- 
enced or  corrupted.    It  enlarged  the  field  of  action  to  every  popular 
favorite,  and  enabled  him  to  combine  greater  numbers.     The  time 


248  MASSACHUSETTS    CONVENTION. 

might  come,  when  he  would  be  able  to  command,  as  truly  as  ever 
a  general  commanded  an  army,  sufficient  numbers  to  affect  or  con- 
trol the  government  itself.  In  that  case,  the  form  of  a  republican 
constitution  might  remain,  but  its  life  and  spirit  would  have  fled. 
The  government  would  be  essentially  a  democracy,  and  between 
that  and  a  despotism  there  would  be  but  one  step.  Such  would  be 
the  tendency  of  the  principle,  and  so  far  as  it  operated,  it  would 
change  the  structure  of  the  constitution.  The  qualification  which 
is  required,  was  intended  as  a  security  for  property.  He  considered 
it  as  a  barrier,  which  ought  not  to  be  removed,  and  could  not  be, 
without  danger  to  the  State. 

Mr.  Hoar  of  Concord  said  that  the  question  was  only  on  reconsid- 
eration of  the  vote  as  it  had  passed,  and  it  was  not  correct  to  con- 
sider it  as  modified,  according  to  the  suggestion  of  the  gentleman 
from  Littleton.  He  had  not  believed  it  possible  that  any  considerate 
member  would  vote  in  favor  of  the  resolution.  He  had  heard  it  re- 
iterated from  all  parts  of  the  House,  that  no  fundamental  principle 
of  the  government  was  to  be  changed.  This  proposition  did  change 
a  fundamental  principle.  It  was  not  the  admission  or  the  rejection 
of  a  few  votes  in  the  existing  state  of  things.  But  it  was  a  change 
which  might,  at  some  time  or  other,  produce  a  result  widely  differ- 
ent from  what  gentlemen  apprehended.  It  went  directly  to  sap  the 
foundations  of  society.  He  asked  if  there  were  too  many  incen- 
tives to  industry  and  economy  at  present  ?  and  appealed  to  the 
reverend  gentleman  from  Littleton  to  say,  whether  in  the  sphere 
of  his  observation  there  had  not  been  many  instances  of  young  men 
from  seventeen  to  twenty-one  years  of  age,  stimulated  by  this  pro- 
vision of  the  constitution  to  an  exertion  which,  by  its  effect  on  their 
character  and  habits,  was  useful  to  them  in  after  life.  Apprentices, 
and  the  sons  of  poor  farmers  were  induced  to  lead  a  life  of  industry 
and  economy,  that  when  they  arrived  at  the  age  provided  by  law, 
they  might  be  prepared  to  exercise  the  rights  of  a  freeman.  This 
alone  was  sufficient  to  determine  his  vote.  But  there  were  other 
considerations.  It  was  an  anti-republican  principle.  He  proceeded 
to  state  in  what  manner  a  rich  man  in  a  populous  town  might  com- 
mand the  votes  of  men  without  any  property,  and  consequently 
destitute  of  character.  It  now  very  seldom  happened,  that  a  man 
of  industrious  habits  and  regular  life  was  excluded  from  the  right 
of  voting.  Even  men  of  character,  who  through  misfortune  are 
obliged  to  call  on  towns  for  aid,  often  have  property  enough  to  en- 
title them  to  vote.  The  household  furniture  exempted  by  law  from 
attachment,  is  nearly  enough  to  give  the  right.  Very  few  but  vag- 
abonds are  excluded. 

Mr.  Blake  was  in  favor  of  reconsideration,  because  he  thought 
the  subject  had  not  been  fairly  examined.  He  was  not  satisfied 
that  the  right  of  universal  suffrage  ought  to  be  exercised,  but  many 
weighty  reasons  could  be  urged  in  favor  of  it,  some  of  which  he 
would  state.  He  did  not  consider  it  as  changing  a  fundamental 
principle  of  the   constitution,  if  he    did,  he  should  oppose  it.     He 


MASSACHUSETTS    CONVENTION.  249 

said  that  the  constitutions  of  most  of  the  states  in  the  Union  re- 
quired no  pecuniary  qualification  ;  those  of  South  Carolina  and 
Virginia,  which  require  a  freehold,  were  exceptions,  and  he  did  not 
mean  to  speak  of  the  states  newly  admitted.  The  example  of 
other  states,  however,  was  not  of  much  weight,  as  we  ought  to  be 
an  example  to  ourselves.  Life  was  as  dear  to  a  poor  man  as  to  a 
rich  man  ;  so  was  liberty.  Every  subject  therefore,  involving  only 
life  or  liberty,  could  be  acted  upon,  with  as  good  authority,  by  the 
poor  as  by  the  rich.  As  to  property,  the  case  was  different.  But 
our  constitution  involves  all  three,  and  the  question  is,  how  the 
power  in  relation  to  them  shall  be  parcelled  out.  Our  constitution 
has  made  the  senate  the  guardian  of  property.  The  senate  is  the 
rich  man's  citadel.  There,  and  there  alone,  the  rich  man  should 
look  for  his  security.  Every  man  who  pays  his  tax — and  he  did  not 
know  why  not  paupers,  as  they  were  liable  to  military  duty,  ought 
to  possess  the  privilege  of  voting.  To  deprive  a  man  of  this  priv- 
ilege till  he  acquires  property,  was  an  encroachment  on  the  funda- 
mental principles  of  our  constitution.  The  constitutions  of  most 
of  the  other  states  give  the  right  of  voting  to  every  man  who  pays 
his  taxes  ;  not  mentioning  anything  about  paupers.  He  said  the 
requisition  of  property  was  in  this  town,  for  a  long  time,  a  dead 
letter,  until  the  Legislature,  a  few  years  since,  made  some  wise 
provisions  concerning  elections. 

On  motion  of  Mr.  Varnum  the  committee  voted  to  rise — 257  to 
29 — reported  progress,  and  asked  leave  to  sit  again;  which  was 
granted. 

Leave  of  absence  was  granted  to  Mr.  Cooke  of  Edgartown,  on  ac- 
count of  the  death  of  his  father,  and  to  Mr.  Noyes,  of  Acton,  on 
account  of  sickness  in  his  family. 

The  House  adjourned. 


Tuesday,  December  12. 

The  House  met  at  9  o'clock,  and  attended  prayers  offered  by  the 
Reverend  Mr.  Jenks.  After  which  the  journal  of  yesterday  was 
read. 

Mr.  Dearborn  of  Roxbury  offered  the  following  resolutions,  viz.: 

Resolved,  That  it  is  proper  and  expedient  so  for  to  alter  and  amend  the  constitu- 
tion, as  to  provide  that  the  senate  shall  be  apportioned  among  the  several  districts, 
into  which  the  Commonwealth  may  from  time  to  time  be  divided,  according  to  the 
number  of  inhabitants  in  each. 

Resolved,  That  it  shall  be  the  duty  of  the  Legislature,  at  the  first  session,  after 
the  census,  which  is  now  taking  under  the  authority  of  the  United  States  shall  be 
completed,  and  at  every  subsequent  period  of  ten  years,  to  cause  the  State  to  be 
divided  into  districts  for  the  choice  of  senators,  which  shall  be  so  formed  of  contig- 
uous towns,  as  to  contain,  as  near  as  possible,  an  equal  number  of  inhabitants  in 
each,  without  dividing  any  town. 

On  motion  of  Mr.  Dearborn  the  resolutions  were  referred  to  the 
committee  of  the  whole  on  the  senate,  &c. 
32 


250  MASSACHUSETTS    CONVENTION. 

On  motion  of  Mr.  Austin  of  Boston,  Ordered,  That  the  resolu- 
tions offered  by  Mr.  Morton  and  others,  relating  to  the  council,  be 
printed  for  the  use  of  the  members — 117  to  13. 

Mr.  Keyes  of  Concord  offered  the  following  resolution  viz.: 

Resolved,  That  it  is  expedient  and  proper  so  to  amend  the  constitution  as  to  pro- 
vide that  paupers  and  persons  under  guardianship,  shall  not  he  entitled  to  vote  for 
any  officer  under  the  government. 

On  motion  of  Mr.  Prescott  of  Boston  the  House  went  into 
committee  of  the  whole,  on  the  report  of  the  select  committee  on 
the  senate,  &c,  Mr.  Webster  of  Boston  in  the  chair. 

Mr.  Q,uincy  said,  that  the  proposition  before  the  committee  had 
been  considered  by  those  in  favor,  as  well  as  those  against  it,  as  one 
for  universal  suffrage  ;  but  that  it  was  not  such  a  proposition. 
Universal  suffrage  is  suffrage  without  qualification.  Suppose  the 
proposition  adopted — still  you  have  not  universal  suffrage.  The 
qualification  of  age,  and  of  sex,  remains.  Women  are  excluded — 
minors  are  excluded.  The  real  nature  of  the  proposition  is  the  ex- 
clusion of  pecuniary  qualification.  This  remark  is  material,  be- 
cause the  only  principle  alleged  in  favor  of  the  exclusion  of  pecu- 
niary qualification  is  just  as  strong  in  favor  of  the  exclusion  of 
every  other  qualification.  Other  gentlemen  had  alleged  reasons  in 
favor  of  the  proposition  from  considerations  of  inconvenience  and 
of  expediency.  But  the  only  gentleman  who  had  alleged  in  its 
favor  a  principle,  as  the  foundation  of  a  right,  was  his  colleague 
(Mr.  Blake.)  His  principle  was  this.  "  Life  is  precious.  Liberty 
is  precious.  Both  more  precious  than  property.  Every  man, 
whose  life  and  liberty  is  made  liable  to  the  laws,  ought  therefore  to 
have  a  voice,  in  the  choice  of  his  legislators."  Grant  this  argument 
to  be  just.  Is  it  not  equally  applicable  to  women  and  to  minors  ? 
Are  they  not  liable  to  the  laws  ?  Ought  they  not  then  to  have  a 
voice  in  the  choice  ?  The  denial  of  this  right  to  them  shows,  that 
the  principle  is  not  just.  Society  may  make  a  part  of  its  mem- 
bers obnoxious  to  laws,  and  yet  deny  them  the  right  of  suffrage, 
without  any  injustice. 

Again — it  has  been  said  that  pecuniary  qualification  was  contrary 
to  the  spirit  of  our  constitution.  Those  who  took  this  ground  had 
not  favored  the  Convention  with  their  definition  of  the  spirit  of  our 
constitution,  though  it  was  very  plain  from  the  course  of  their 
arguments  that  what  they  understood  by  it,  was  a  spirit  of  universal 
or  unlimited  liberty.  Now,  this  is  not  the  spirit  of  our  constitution  ; 
which  is  a  spirit  of  limited  liberty  ;  of  reciprocal  control.  Reduced 
to  the  form  of  a  definition,  this  is  the  meaning  of  the  term,  spirit  of 
our  constitution — The  will  of  the  people,  expressed  through  an  organ- 
ization by  balanced  power.  Every  man-,  therefore,  who  would 
compare  any  given  provision,  with  the  spirit  of  our  constitution, 
ought  not  to  recur  to  principles  of  abstract  liberty,  but  to  principles 
of  balanced  liberty.  With  respect  to  those  checks  and  balances, 
which  according  to  the  form  of  our  constitution,  constitute  the  char- 
acter of  Massachusetts  liberty,  those  gentlemen  take  a  very  narrow 


MASSACHUSETTS    CONVENTION.  251 

view  of  the  subject   who  deem  that  they  exist  only   in  the  separa- 
tion of  the  powers  of  government   into  the  legislative,  judicial  and 
executive  ;  or  in  the  division  of  the  legislative  power  among  three 
branches.     Every  limitation  of  the  exercise  of  any  right  or  power, 
under  the  constitution,  makes  a  part  of  that  balance,  which  will  be 
disturbed  by  its  removal.     The  provision  of  a  pecuniary  qualifica- 
tion is  of  this  nature.     It  is  one  of  the  checks  in  our  constitution. 
How  it  operates,  whom  it  affects,  whom  it  benefits,  are   worthy  of 
consideration.     In  the  course  of  the  argument  in  the  Convention,  it 
has  been  considered  as  a  check,  in  favor  of  the  rich,  and  against  the 
poor.     Now  the  fact  is,  that  it  is  directly  the  reverse.     If  we  should 
suppose  the  rich,  acting  as  a  class,  this  is  the  first  provision,  which 
they  ought  to  expunge.     And  on  the  other  hand,  it  is  the  last,  with 
which  the  poor  ought  to  consent  to  part.     In  its  true  character,  this 
provision  is  in  favor  of  the  poor,  and  against  the  pauper  ; — that  is  to 
say,  in  favor  of  those  who  have  something,  but  very  little  ;  against 
those  who  have  nothing  at  all.     Suppose  all  qualifications  of  prop- 
erty taken  away,  who   gains  by  it  ?     The  poor  man,  who  has  just 
property  enough  to  be  qualified  to  vote  ?     Or  the  rich,  whose  prop- 
erty is  a  great  surplus  ?     The  rich  man's  individual  vote  is,  indeed, 
countervailed  by  it,  as  well  as  the  poor  man's.     But  the  great  differ- 
ence is  this,  that  the  poor  man  has  thus  lost  his  political  all  ;  he  has 
no  power  of  indemnifying  himself.     Whereas  the  rich,  by  the  in- 
fluence resulting  from  his  property  over  the  class  of  paupers,  has  a 
power  of  indemnifying  himself  a  hundred  fold.     The  theory  of  our 
constitution  is,  that  extreme  poverty — that  is,  pauperism — is  incon- 
sistent with  independence.     It  therefore  assumes  a  qualification  of  a 
very  low  amount,  which,  according  to  its  theory,  is  the  lowest  con- 
sistent with  independence.     Undoubtedly  it  excludes  some,  of  a  dif- 
ferent character  of  mind.     But  this  number  is  very  few  :  and  from 
the  small  amount  of  property  required,  is,  in  individual  cases,  soon 
compensated. 

At  the  present  day,  the  provision  was  probably  worth  very  little. 
In  the  present  results  of  our  elections,  it  would  not  make  one  hair 
white  or  black.  But  prospectively,  it  was  of  great  consequence. 
In  this  point  of  view  he  put  it  to  the  consideration  of  the  landholders, 
and  yeomanry  of  the  country.  The  principle  was  peculiarly  imporr 
tant  to  them.  Everything  indicates  that  the  destinies  of  the  coun- 
try will  eventuate  in  the  establishment  of  a  great  manufacturing  in- 
terest in  the  Commonwealth.  There  is  nothing  in  the  condition  of 
our  country,  to  prevent  manufacturers  from  being  absolutely  depen- 
dent upon  their  employers,  here  as  they  are  everywhere  else.  The 
whole  body  of  every  manufacturing  establishment,  therefore,  are  dead 
votes,  counted  by  the  head,  by  their  employer.  Let  the  gentlemen 
from  the  country  consider,  how  it  may  affect  their  rights,  liberties 
and  properties,  if  in  every  county  of  the  Commonwealth  there  should 
arise,  as  in  time  there  probably  will,  one,  two,  or  three  manufac- 
turing establishments,  each  sending,  as  the  case  may  be.  Irom  one  to 
eight  hundred  votes  to  the  polls  depending  on  the  will  of  one  employer, 


252  MASSACHUSETTS    CONVENTION. 

one  great  capitalist.  In  such  a  case  would  they  deem  such  a  pro- 
vision as  this  of  no  consequence  ?  At  present  it  is  of  little  impor- 
tance. Prospectively  of  very  great.  As  to  the  inconvenience  re- 
sulting from  the  present  provision,  this  was  amply  balanced  by  its 
effect  as  a  moral  means,  and  as  an  incentive  to  industry.  But  these 
had  been  already  well  and  satisfactorily  elucidated  by  his  colleague 
(Mr.  Dutton)  and  the  gentleman  from  Concord  (Mr.  Hoar.) 

Mr.  S locum  of  Dartmouth  said — he  recollected  that  in  1775  the 
saying  was  current,  that  taxation  and  representation  should  go  hand 
in  hand.  Take  this  text,  and  apply  it  to  the  men  who  are  excluded 
by  this  qualification  from  the  rights  of  voting.  Who  are  they  ?  the 
laboring  parts  of  society  ?  How  long  have  they  been  fettered  ? 
Forty  years.  Who  achieved  our  independence  ?  This  class  of  men. 
And  shall  we  then  disfranchise  them  ?  I  hope  not.  As  the  consti- 
tution now  is,  these  men  are  deprived  of  voting,  and  must  stand  by 
and  see  the  rich  putting  in  their  votes  -'like  Patience,  on  the  monu- 
ment, smiling  at  Grief."  If  a  man  was  a  Newton  or  a  Locke,  if  he 
is  poor,  he  may  stand  by  and  see  his  liberties  voted  away.  Suppose 
an  invasion  should  happen — these  men  would  be  obliged  to  come 
forward  in  defence  of  their  country.  He  felt  conscientiously  bound 
to  give  them  the  right  of  voting,  and  he  hoped  the  motion  for  recon- 
sideration would  not  prevail. 

Mr.  Austin  of  Boston  said  that  gentlemen,  who  were  unwilling 
to  change  the  principles  of  the  constitution,  instead  of  striking  out 
this  qualification  ought  to  increase  the  sum,  on  account  of  the  change 
in  the  value  of  money ;  he  thought,  however,  that  it  would  be  im- 
possible for  them  to  effect  this,  and  experience  had  shown  the  im- 
policy of  requiring  the  present  qualification.  He  would  not  contend 
against  the  right  of  requiring  it,  though  there  were  strong  arguments 
on  that  side,  but  he  considered  it  inexpedient.  The  provision  could 
not  be  carried  into  effect ;  it  was  the  cause  of  perjury  and  immoral- 
ity— it  did  not  prevent  a  fraudulent  man  from  voting,  who  owed 
more  than  he  was  worth,  but  debarred  an  honest  poor  man  who  paid 
his  debts — and  it  tended  to  throw  suspicion  of  unfairness  on  the 
municipal  authority.  He  asked,  what  will  you  do  with  your  labor- 
ing men  ?  they  have  no  freehold — no  property  to  the  amount  of  two 
hundred  dollars,  but  they  support  their  families  reputably  with  their 
daily  earnings.  What  will  you  do  with  your  sailors  ?  Men  who 
labor  hard,  and  scatter  with  inconsiderateness  the  product  of  their 
toil,  and  who  depend  on  the  earnings  of  the  next  voyage.  What 
will  you  do  with  your  young  men,  who  have  spent  all  their  money 
in  acquiring  an  education  ?  Must  they  buy  their  right  to  vote  ?  Must 
they  depend  on  their  friends  or  parents  to  purchase  it  for  them  ? 
Must  they  wait  till  they  have  turned  their  intelligence  into  stock  ? 
Shall  all  these  classes  of  citizens  be  deprived  of  the  rights  of  free- 
men for  want  of  property  ?  Regard  for  country,  he  said,  did  not 
depend  upon  property,  but  upon  institutions,  laws,  habits  and  asso- 
ciations. This  qualification  was  said  to  encourage  industry  ; — it 
was  better  to  depend  on  the  principle  of  character  and  independence 


MASSACHUSETTS    CONVENTION.  253 

which  a  man  feels  in  exercising  the  privilege  of  a  freeman.  If  tak- 
ing away  this  qualification  would  weaken  the  moral  force  in  the 
community,  as  had  been  urged,  he  should  be  for  retaining  it ;  but 
that  force  depends  on  education,  and  the  diffusion  of  intelligence. 
One  gentleman  (Mr.  Quincy)  had  looked  forward  to  our  becoming  a 
great  manufacturing  people.  God  forbid.  If  it  should  happen,  how- 
ever, it  was  not  to  be  expected,  that  this  modicum  of  property  re- 
quired would  exclude  the  laborers  in  manufactories  from  voting.  It 
was  better  to  let  them  vote — they  would  otherwise  become  the 
Lazaroni  of  the  country.  By  refusing  this  right  to  them,  you  array 
them  against  the  laws  ;  but  give  them  the  rights  of  citizens — mix 
them  with  the  good  part  of  society,  and  you  disarm  them. 

Mr.  Thorndike  of  Boston  was  in  favor  of  but  few  alterations  in 
the  constitution  and  opposed  to  this.  He  rose  to  speak  only  of  the 
practical  effect  of  this  provision  in  the  constitution,  so  far  as  it  had 
come  under  his  observation.  He  had  long  been  acquainted  with  the 
sea-faring  men  in  a  neighboring  town  of  about  four  thousand  inhab- 
itants, and  had  witnessed  there  the  effect  of  the  provision  in  the 
constitution  upon  young  men  under  age,  which  had  been  described 
by  the  gentleman  from  Concord,  yesterday,  as  operating  upon  young 
men  engaged  in  agricultural  pursuits.  They  were  generally  anxious 
to  amass  the  little  property  necessary  to  give  them  the  right  of  vot- 
ing, and  this  anxiety  had  a  favorable  effect  on  their  habits  and  char- 
acter. The  case  of  seamen  had  been  alluded  to  as  entitled  to  con- 
sideration. They  had  been  described  as  men  who  scatter  a  great 
deal  of  money  and  do  not  save  enough  to  make  them  voters  under 
the  constitution.  The  votes  of  seamen  of  that  description,  he  said, 
ought  not  to  be  received.  They  were  the  votes  of  their  owners,  or 
of  intriguing  men  who  wish  either  to  get  into  office  themselves  or 
to  get  their  friends  in.  If  the  qualification  was  not  high  enough  to 
answer  all  the  objects  for  which  it  was  intended,  that  was  no  reason 
for  rejecting  it  altogether.  It  might  be  of  great  use.  If  frauds  were 
committed,  measures  might  be  taken  to  prevent  them  and  to  obviate 
the  objections  on  that  ground. 

Mr.  Richardson  of  Hingham,  in  a  written  speech,  observed  that 
in  accordance  with  an  article  in  the  declaration  of  rights,  there  ought 
to  be  a  representation  on  the  foundation  of  equality.  This  could 
not  be,  so  long  as  any  people,  who  are  taxed,  do  not  vote.  The 
right  of  voting  was  a  grand  and  essential  privilege  of  freemen.  It 
was  necessary,  in  order  to  check  the  growing  aristocracy,  which  is 
most  to  be  dreaded  in  a  republic,  to  extend  the  privilege.  Young 
men  who  bear  arms,  were  now  treated  as  slaves.  Apprentices  and 
other  young  men  were  discouraged  under  this  constitution  ;  when 
called  upon  to  defend  their  country,  their  ardor  would  be  chilled. 
Want  of  property  in  a  free  government,  should  be  the  last  thing  to 
prevent  men  from  voting,  unless  the  possession  of  property  were 
shown  to  be  necessarily  connected  with  virtue.  The  present  con- 
stitution would  have  excluded  our  Savior  from  this  privilege.  He 
hoped  the  vote  would  not  be  reconsidered. 


254  MASSACHUSETTS     CONVENTION. 

Mr.  Foster  considered  this  a  distinct  question  from  that  of  requir- 
ing a  pecuniary  qualification  for  holding  office.  No  man  had  aright 
to  office,  but  all  men  had  a  right  to  a  voice  in  the  election  of  public 
officers.  He  assumed  it  as  a  fundamental  principle  that  taxation 
and  representation  should  go  together.  All  rateable  polls  were 
counted  in  giving  a  right  of  representation,  and  the  persons  who  con- 
tributed to  give  the  right  to  representation,  ought  not  to  be  deprived 
of  the  privilege  of  voting  for  the  representative.  He  considered  the 
rights  of  property  as  secured  by  that  part  of  the  provision  relative 
to  the  senate,  which  apportioned  the  senators  according  to  prop- 
erty. 

Mr.  Flint  of  Reading  said  the  poor  man  would  be  worse  off  than 
he  is  now,  if  this  talk  about  equal  rights  were  carried  into  effect. 
He  asked  what  right  a  poor  man  possessing  a  hundred  dollars,  and 
having  ten  children,  had  to  call  upon  a  man  possessed  of  a  hundred 
thousand  dollars  to  educate  and  help  support  his  children  ?  take 
away  this  assistance  and  you  affect  the  poor  man's  life  and  comforts, 
which  he  would  consider  of  much  more  consequence  than  the  priv- 
ilege of  voting.     He  hoped  there  would  be  a  reconsideration. 

Mr.  Dana  of  Groton  unhesitatingly  said  that  requiring  this 
qualification  was  an  aristocratical  and  anti-republican  principle.  It 
was  introduced  into  the  constitution  forty  years  ago,  when  the  prin- 
ciples of  government  were  not  so  well  understood  as  at  present,  and 
when  the  country  was  not  assured  of  its  independence.  He  con- 
sidered it  as  a  mischievous  principle  which  had  been  the  cause  of 
much  moral  corruption. 

Mr.  Ward  of  Boston  did  not  consider  this  a  contest  between  the 
old  and  the  young ;  or,  between  the  rich  and  the  poor,  but  as  a  ques- 
tion, which  course  was  most  likely  to  promote  the  public  good. 
That  course  of  proceeding  which  was  most  likely  to  secure  the 
rights  of  all  classes  of  people  was  the  proper  one.  If  to  require  no 
pecuniary  qualification  to  make  a  voter  was  the  most  likely  mode 
of  securing  the  best  good  of  the  whole,  it  ought  certainly  to  be 
adopted.  On  the  contrary,  if  to  confine  the  right  of  voting  to  per- 
sons who  are  directly  interested  in  the  protection  of  the  rights  of 
property,  as  well  as  of  life  and  liberty,  was  the  most  probable  mode 
of  securing  the  enactment  of  just,  equal,  and  useful  laws,  there  could 
be  no  doubt  that  the  people  have  a  right,  and  that  it  is  their  duty  so 
to  limit  the  privilege  of  suffrage.  He  stated  a  variety  of  considera- 
tions which  induced  him  to  believe  that  the  qualification  of  property 
had  a  tendency  to  secure  the  government  in  the  hands  of  men  who 
would  have  a  greater  interest  in  promoting  the  general  good.  If  this 
qualification  produced  such  evils  as  perjury  and  immorality,  he  was 
sorry  for  it ;  but  the  same  objection  would  lie  against  requiring  other 
qualifications.  The  qualifications  of  age  and  residence  were  com- 
monly allowed  upon  the  assertion  of  the  voter  himself.  He  said  it 
was  of  more  importance  even  to  the  persons  excluded,  that  there 
should  be  a  good  government,  than  that  they  should  bear  a  part  in 
electing  the  officers  to  administer  it. 


MASSACHUSETTS    CONVENTION.  255 

Mr.  Baldwin  was  inclined  to  extend  the  privilege  without  a  qual- 
ification of  property.  He  had  always  approved  of  the  principle 
that  taxation  and  representation  should  be  united.  It  is  asserted  in 
the  bill  of  rights,  "all  men  are  born  free  and  equal."  Some  men  are 
born  entitled  to  great  property.  This  property  cannot  give  them  a 
right  of  voting,  but  the  right  belongs  to  all  persons,  who  are  born 
equal,  and  should  be  equally  entitled  to  all  the  privileges  of  freemen. 
If  property  gives  a  right  of  voting,  why  should  not  a  man  worth 
one  hundred  thousand  dollars,  put  in  an  hundred  votes,  as  well  as 
one  who  has  two  hundred  dollars  put  in  one  vote  ?  He  thought  we 
could  not,  without  an  infringement  of  this  first  principle  of  our  ex- 
cellent constitution,  retain  the  pecuniary  qualification.  Mr.  Keyes 
of  Concord  had  offered  this  resolution  out  of  regard  to  the  moral 
order  which  he  thought  ought  to  be  preserved  in  the  community. 
As  a  moral  man  he  was  in  favor  of  the  resolution,  and  hoped  it 
would  prevail. 

Mr.  Savage  said,  if  the  vote  passed  against  the  reconsideration,  it 
would  be  against  the  sense  of  nine-tenths  of  the  committee.  All 
who  had  spoken  in  favor  of  the  principle,  had  rested  it  on  the  fa- 
vorite principle  of  the  revolution,  that  taxation  and  representation 
should  go  together.  But  the  proposition  as  it  has  passed  the  com- 
mittee goes  to  exclude  the  very  principle  on  which  they  found  their 
argument.  He  did  not  agree  in  the  opinion  of  the  gentleman  from 
Groton  (Mr.  Dana)  that  those  who  framed  our  constitution  were 
ignorant  of  the  principles  of  free  government  ;  nor  was  there  any 
truth  in  the  apology  for  its  supposed  imperfections,  that  in  1780 
they  were  not  certain  that  our  independence  would  be  maintained. 
There  was  not  a  child  of  15  years  old,  then  in  the  Commonwealth, 
who  did  not  feel  sure  and  see  that  our  independence  might  and 
would  be  secured.  The  constitution  was  not  framed  upon  any  new 
principles  that  were  imperfectly  understood,  but  upon  the  principles 
of  their  fathers  and  grandfathers,  which  had  long  been  practised  on 
and  were  well  understood.  In  relation  to  the  subject  of  the  resolu- 
tion, he  thought  there  ought  to  be  a  change  in  the  constitution — a 
change  that  should  accommodate  it  to  the  principle  on  which  gen- 
tlemen had  supported  the  resolution,  and  put  it  on  the  footing  that 
those  who  bear  the  burden  of  supporting  government  should  have 
the  right  of  voting.  A  gentleman  had  stated  that  he  had  a  propo- 
sition to  make,  the  object  of  which  would  be  to  introduce  this  prin- 
ciple into  the  constitution.  But  it  could  not  be  received  unless  the  vote 
was  reconsidered.  Why  should  not  the  vote  be  reconsidered,  to 
give  gentlemen  an  opportunity  to  have  precisely  what  they  want  ? 
He  did  not  wish  to  exclude  young  men,  who  are  useful  members  of 
society,  and  who  pay  a  tax  for  the  support  of  government.  Let  it 
be  provided  that  those  who  pay  their  taxes  shall  vote.  But  there 
are  many  men  who  never  pay  a  tax,  and  never  would  pay  it  they 
were  assessed,  but  who,  by  the  resolution,  would  be  admitted  to  the 
right  of  voting.  There  were  in  the  town  of  Boston  about  6000 
voters,  and  if  all  male  persons  over  21  years  old  were  admitted,  there 


256  MASSACHUSETTS    CONVENTION. 

might  be  2000  more.  Of  these  2000,  not  one  quarter  pay  any  tax, 
and  ought  not  to  be  allowed  to  vote  on  the  principle  upon  which 
the  resolution  has  been  supported. 

Mr.  Dana  said  he  did  not  mean  to  charge  the  framers  of  the  con- 
stitution with  want  of  intelligence.  They  retained  a  small  relic  of 
ancient  prejudices,  and  he  hoped  we  should  get  rid  of  it.  In  respect 
to  another  point,  he  said  Cornwallis  was  not  taken  at  the  time  this 
constitution  was  made,  and  much  apprehension  was  entertained  in 
respect  to  our  independence. 

Mr.  Varnum  was  yesterday  impressed  with  an  idea  that  it  would 
be  proper  to  reconsider  this  vote,  but  since  he  had  seen  the  resolu- 
tion of  the  gentleman  from  Concord,  offered  this  morning,  he  thought 
it  was  unnecessary.  The  object  proposed  by  the  reconsideration, 
could  be  provided  for  by  an  independent  resolution.  He  was  in 
favor  of  rejecting  the  pecuniary  qualification.  If  any  was  necessary 
that  now  provided,  was  too  low  to  answer  the  purpose.  Experience 
had  shown  that  it  had  done  no  good,  but  had  been  frequently  the 
means  of  raising  ill  blood  and  producing  confusion.  When  a  man 
becomes  twenty-one  years  of  age,  let  him  be  a  freeman — receive 
him  into  the  bosom  of  society,  and  he  will  be  more  likely  to  be  a 
useful  citizen.  He  alluded  to  the  case  of  sailors  who  are  by  this 
provision  deprived  of  their  right  of  suffrage.  Without  them  the 
country  would  have  been  comparatively  worth  nothing.  We  can- 
not do  without  them,  and  they  ought  not  to  be  excluded  from  the 
right  of  voting.     They  ought  to  be  nourished  and  cherished. 

Mr.  Bond  of  Boston  said,  that  the  reverend  gentlemen  from  Boston 
and  Hingham  (Mr.  Baldwin  and  Mr.  Richardson)  quoted  the  dec- 
laration of  rights,  in  the  same  way  that  people  sometimes  garble  the 
scriptures.  The  whole  constitution  should  be  taken  together.  They 
quote  the  declaration  of  rights  to  prove  that  requiring  this  qualifica- 
tion of  property  is  contrary  to  the  principles  of  the  constitution, 
when  it  is  the  constitution  itself  which  requires  this  qualification. 

Mr.  Farwell  of  Cambridge  did  not  rise  to  enter  into  the  debate, 
but  to  call  for  the  previous  question. 

The  Chairman.  There  is  no  previous  question  in  the  commit- 
tee. 

Mr.  Leland  was  aware  that  much  evil  had  existed  under  the  old 
system.  There  had  been  much  abuse — but  this  was  no  reason  why 
we  should  run  into  another  evil.  He  asked  if  gentlemen  were  pre- 
pared to  go  the  length  of  the  resolution.  The  objects  of  government 
were  the  security  of  property,  as  well  as  of  personal  rights.  If  this 
resolution  is  most  likely  to  secure  these  rights  it  ought  to  be  adopted. 
But  it  must  be  known  to  every  one  that  there  are  persons  in  every 
town,  who  are  never  put  into  a  tax  bill,  because  the  town  officers 
know  very  well  that  no  tax  could  be  collected  from  them.  The 
principle  on  which  the  resolution  had  been  defended  was,  that  those 
who  paid  taxes  ought  to  have  a  right  to  vote.  He  proceeded  to 
illustrate  his  argument  by  the  application  of  the  resolution  to  the 
persons  in  Boston  not  taxed. 


MASSACHUSETTS    CONVENTION.  257 

The  question  for  reconsideration  was  taken  and  decided  in  the 
affirmative — 200  to  200,  the  chairman  giving  his  casting  vote  in 
the  affirmative. 

Mr.  Blake  moved  to  amend  the  resolution  so  as  to  provide  that 
every  citizen  of  this  Commonwealth  who  is  subject  to  pay  and  does 
pay  taxes  in  the  town  wherein  he  resides,  including  also  ministers 
of  the  gospel  and  all  others  who  are  or  may  be  specially  exempted 
by  law  from  taxation,  shall  have  the  right  to  vote  in  the  election  of 
public  officers  in  this  Commonwealth.  Mr.  B.  stated  his  reasons  for 
offering  the  amendment. 

The  amendment  was  agreed  to. 

The  question  on  the  resolution  as  amended  was  then  taken,  and 
decided  in  the  affirmative. 

Mr.  Nichols  moved  to  amend  by  striking  out  the  words,  "  does 
pay." 

The  Chairman.  It  cannot  be  done.  An  amendment  of  the  reso- 
lution having  been  adopted,  that  amendment  cannot  be  amended. 
It  may  possibly  be  done  in  convention,  but  it  cannot  be  done  in 
committee. 

The  committee  proceeded  to  take  up  the  resolutions  offered  by 
Mr.  Dearborn,  the  first  being  that  which  goes  to  provide  that  the 
senate  shall  be  apportioned  among  the  several  districts,  according  to 
the  number  of  inhabitants  in  each. 

Mr.  Dearborn  supported  the  resolution  in  a  speech  of  consider- 
able length — of  which  we  can  give  but  a  brief  abstract.  He  did  not 
know  whence  the  principle,  by  which  the  senate  is  apportioned  by 
the  present  constitution,  was  derived.  It  was  not  to  be  found  in  the 
organization  of  any  of  the  republics,  ancient  or  modern.  It  did  not 
exist  in  Greece,  Rome,  Venice  or  Genoa.  It  was  found  in  the  British 
House  of  Lords.  The  members  of  that  house  support  the  rights  of 
the  aristocracy,  and  are  their  own  representatives.  In  the  United 
States  there  is  but  one  class  of  people.  They  are  all  freemen  and 
have  equal  rights.  The  principle  of  a  representation  of  property  in 
our  constitution  was  not  derived  from  the  neighboring  states.  New 
Hampshire  was  the  only  state  whose  constitution  contained  a  similar 
provision.  If  the  principle  was  a  good  one,  it  was  remarkable  that 
it  had  not  been  adopted  in  any  other  state.  The  only  reason  he  had 
ever  heard  of  to  justify  the  principle  was,  that  the  taxes  are  paid  in 
proportion  to  property,  and  that  the  principle  of  apportionment  was 
designed  for  the  protection  of  property.  But  this  protection  was  not 
necessary.  Property  secures  respect  whenever  it  is  not  abused,  and 
the  influence  of  those  who  possess  it  is  sufficient  for  its  protection. 
He  apprehended  nothing  at  present  from  the  representation  of  wealth. 
But  the  time  might  come  when  the  accumulation  of  property  within 
twenty  miles  of  the  capital  would  be  sufficient  to  control  the  senate. 
At  present  the  county  of  Berkshire,  of  about  equal  population  with 
Suffolk,  would  have  but  a  third  part  of  the  representation,  and  the 
man  of  large  property  in  the  former  county  would  have  but  a  third 
part  of  the  influence  through  the  senate  which  was  enjoyed  by  a 
33 


258  MASSACHUSETTS    CONVENTION. 

man  of  the  same  property  in  the  latter  county.  This  was  not  just, 
equitable  nor  proper.  He  appealed  to  the  magnanimity  of  the  rich 
to  yield  to  the  poor  their  equal  proportion  of  rights.  The  principle 
might  be  adopted  now,  but  the  people  would  be  dissatisfied  with  it, 
they  would  constantly  protest  against  it,  and  it  would  be  at  some 
time  or  other  necessarily  yielded  to  their  importunity. 

The  question  on  the  resolution  was  then  taken  and  decided  in  the 
affirmative — 236  to  145. 

The  question  on  the  other  resolution  offered  by  Mr.  Dearborn, 
which  makes  it  the  duty  of  the  Legislature  after  each  decennial 
census  to  form  the  state  into  districts,  was  taken  up  and  agreed  to. 

Mr.  Dana  wished  to  inquire  of  the  chairman  of  the  select  com- 
mittee, whether  the  resolutions  just  passed  did  not  supersede  a  part 
of  the  resolutions  which  had  been  agreed  to  in  committee  of  the 
whole  yesterday. 

Mr.  Prescott  thought  they  did.  He  said  that  the  committee  who 
reported  those  resolutions  had  considered  the  whole  as  forming  one 
system.  Every  gentleman  of  the  committee  considered  that  the 
principle  of  apportionment  in  the  senate  provided  in  the  constitu- 
tion, and  which  they  had  not  proposed  to  change,  was  a  reason  for 
recommending  a  system  of  representation  in  the  other  house,  which 
gave  an  advantage  to  the  small  towns  at  the  expense  of  the  large 
towns.  The  proposition  for  paying  the  members  out  of  the  treasury 
was  a  part  of  the  system.  This  would  be  manifestly  unjust  if  the 
towns  which  pay  the  largest  proportion  of  tax,  were  to  be  deprived 
of  the  privilege  which  in  consequence  of  that  tax  they  enjoyed  of 
representation  in  the  senate.  He  was  proceeding  to  mention  the 
several  features  of  the  system  which  were  considered  as  depending 
on  one  another,  when 

The  Chairman  said  that  no  question  was  before  the  House. 

Mr.  Prescott  said  that  he  rose  to  answer  the  inquiry  of  the  gen- 
tleman from  Groton. 

Mr.  Nichols  said  that  to  give  the  gentleman  an  opportunity  to 
pursue  his  remarks,  he  would  move  a  reconsideration  of  the  vote  for 
accepting  Mr.  Dearborn's  first  resolution. 

Mr.  Dearborn  acceded  to  the  propriety  of  opening  the  whole 
subject,  as  the  resolution  had  passed  without  much  debate. 

Mr.  Parker  was  not  very  anxious  about  the  system  of  representa- 
tion for  the  senate  which  should  be  adopted.  But  if  a  part  of  the 
system  reported  by  the  select  committee  was  rejected,  the  vote  on 
the  remainder  would  be  different.  The  propositions  for  the  reduc- 
tion of  representatives  and  for  paying  them  out  of  the  public  treasury 
had  been  agreed  to  on  the  principle  that  the  senatorial  representation 
should  remain  as  it  is  fixed  by  the  present  constitution.  If  it  was 
understood  that  the  principle  of  representation  in  the  senate  was  to 
be  changed,  it  could  not  be  expected  that  the  votes  which  had 
passed  should  be  adhered  to.  It  was  manifestly  unjust  that  Boston, 
for  example,  which  was  reduced  to  fourteen  or  fifteen  representa- 


MASSACHUSETTS    CONVENTION.  259 

tives — a  number  considerably  less  than  its  proportion  according  to 
population — should  be  held  to  pay  for  fifty  representatives. 

Mr.  Dearborn  said  that  it  had  been  his  intention,  if  the  resolution 
passed,  to  submit  a  proposition  that  the  representatives  should  be 
distributed  in  proportion  to  population — that  three,  four  or  five,  ac- 
cording to  the  opinion  of  the  House,  should  be  assigned  to  each 
senatorial  district.  He  had  no  idea  that  the  senate  should  represent 
population,  and  the  house  be  represented  in  the  mode  proposed  in 
the  report. 

Mr.  Quincy  hoped  that  the  committee  would  accede  to  the  liberal 
proposition  of  the  gentleman  from  Roxbury,  and  allow  of  a  recon- 
sideration that  the  subject  might  be  discussed  in  a  manner  suited  to 
its  importance. 

Mr.  Dwight  of  Springfield  said  that  he  had  not  expected  that  the 
principle  of  representation  in  the  senate  would  have  been  touched. 
He  considered  the  resolutions  reported  by  the  select  committee  as 
forming  one  system,  and  that  a  part  should  not  be  adopted  without 
the  rest. 

Mr.  Lincoln  said  that  he  had  not  considered  the  report  of  the 
select  committee,  as  a  system  which  was  to  be  accepted  in  the 
whole  or  rejected.  He  had,  however,  no  objection  to  the  recon- 
sideration. 

The  motion  for  reconsideration  was  agreed  to — 260  rising  in  favor 
of  it. 

On  motion  of  Mr.  Story,  the  committee  rose,  reported  progress, 
and  had  leave  to  sit  again. 

Mr.  Lyman  of  Northampton  offered  a  resolution,  proposing  such  an 
amendment  of  the  constitution,  that  the  Commonwealth  should  be  di- 
vided into  districts,  for  the  choice  of  representatives,  no  district  except 
Boston,  to  contain  more  than  15,000  inhabitants,  and  the  number 
of  representatives  not  to  exceed  one  for  every  3,000  inhabitants. 

Mr.  Lincoln  offered  two  resolutions,  proposing  such  an  amend- 
ment of  the  constitution,  that  every  town  now  entitled  to  a  repre- 
sentative shall  still  have  one.  Every  town  containing  3,000  in- 
habitants to  have  two — towns  of  6,500  to  have  three — 10,500  to 
have  four,  and  so  on.  Adding  500  each  time  to  the  last  increasing 
number. 

The  resolutions  offered  by  Mr.  Lyman  and  Mr.  Lincoln,  were 
committed  to  a  committee  of  the  whole  House,  and  ordered  to  be 
printed. 

The  House  adjourned. 


Wednesday,   December    13. 

The  House  met  at  9  o'clock,  and  attended  prayers  offered  by 
the  Rev.  Mr.  Palfrey.  After  which  the  journal  of  yesterday  was 
read. 

Mr.  Webster  of  Boston  offered  the  following  resolution,  viz.  : 


260  MASSACHUSETTS    CONVENTION. 

•  Resolved,  That  at  all  the  reports  of  the  committee  of  the  -whole,  not  acted  upon,  be 
made  the  order  of  the  day  for  Monday  next,  at  10  o'clock,  and  be  considered  and  de- 
termined in  the  order  in  which  they  shall  have  been  reported — and  that  a  committee 
of  members  be  appointed  to  reduce  such  amendments  as  have  been  or  may  be 

agreed  upon,  to  the  form  in  which  it  will  be  proper  to  submit  the  same  to  the  people 
for  ratification. 

The  blank  was  filled  with  nine,  and  the  resolution  was  adopted. 

The  President  said  he  should  require  time  to  select  the  com- 
mittee. 

Mr.  Dearborn  of  Roxbury  offered  two  resolutions,  which  he 
wished  to  be  considered  as  part  of  a  series  with  the  two  which  he 
had  before  presented  relating  to  the  senate,  in  substance  as  follows, 
viz. : 

3d.  Resolved,  That  the  house  of  representatives  shall  consist  of  members. 

4th.  Resolved,  That  the  representatives  shall  be  apportioned  among  the  legislative 
districts  according  to  the  population  in  each. 

On  motion  of  Mr.  Dearborn  they  were  referred  to  the  committee 
of  the  whole  on  the  senate,  &c. — 119  to  85. 

On  motion  of  Mr.  Prescott  of  Boston  the  House  went  into  com- 
mittee of  the  whole  on  the  unfinished  business  of  yesterday ;  Mr. 
Webster  of  Boston  in  the  chair. 

On  motion  of  Mr.  Parker  of  Boston  the  committee  first  took  up 
the  consideration  of  the  second  report  of  the  select  committee,  re- 
lating to  elections.  The  report  was  read,  and  the  question  was 
upon  the  first  resolution,  proposing  that  the  town  meetings  for  the 
election  of  governor,  lieutenant  governor,  senators  and  representa- 
tives, shall  be  holden  on  the  same  day  in  each  year. 

Mr.  Sibley  of  Sutton  moved  to  amend  the  resolution  so  as  to  in- 
clude counsellors. 

The  Chairman  observed  that  probably  the  gentleman  and  the 
House  generally,  were  not  aware  of  the  state  of  the  report  of  the 
select  committee  on  the  subject  of  counsellors.  He  said  that  as  it 
had  been  committed  to  a  new  committee  of  the  whole,  the  proceed- 
ings of  the  first  committee  of  the  whole  were  annulled. 

Messrs.  Sullivan,  Pickman  and  Prescott  made  objections  to  the 
amendment. 

The  amendment  was  negatived. 

Mr.  Austin  of  Boston  moved  to  strike  out  "  and  representatives," 
as  more  than  one  day  might  be  requisite  to  complete  the  elections 
in  large  towns. 

Mr.  Lincoln  of  Worcester  objected  to  the  amendment,  because  it 
was  desirable,  that  one  town  should  not  be  influenced  in  its  elec- 
tions of  representatives,  by  the  result  of  the  elections  in  other  towns. 
Mr.  Jackson  of  Boston  said  that  in  respect  to  the  governor,  &c, 
only  one  balloting  was  necessary,  but  it  might  be  otherwise  in  the 
choice  of  representatives,  in  towns  entitled  to  elect  several.  In 
Boston,  where  forty-five  were  sometimes  ballotted  for,  if  there  should 
be  split-tickets,  two  or  more  ballotings  might  be  required  ;  in  which 
case  more  than  one  day  would  be  requisite  to  complete  the  elections. 


MASSACHUSETTS    CONVENTION.  261 

The  object  of  the  gentleman  from  Boston  would  be  obtained  by- 
adjourning  from  day  to  day,  till  the  election  was  finished.  Some 
persons  thought  that  towns  already  possessed  this  power,  and  he  was 
inclined  to  think  so  himself,  though  he  did  not  know  what  would 
be  his  opinion  upon  an  examination  of  the  subject.  It  was  better, 
however,  to  remove  all  doubt,  by  using  express  words.  He  had 
prepared  an  amendment  with  this  view. 

Mr.  Austin  withdrew  his  amendment  to  give  place  to  Mr.  Jack- 
son's, which,  modified  at  the  suggestion  of  Mr.  Pickman,  and  with 
a  blank  filled,  was  adopted  as  follows  :  "But  (the  town  meetings) 
may  be  continued  from  day  to  day  by  adjournment,  for  the  purpose 
of  choosing  representatives  for  such  time  as  may  be  necessary  to 
complete  such  elections,  provided  that  no  meeting  shall  be  continued 
more  than  three  days." 

The  resolution  was  likewise  altered,  so  as  to  extend  to  districts, 
and  passed  as  amended. 

The  second  resolution  related  to  the  day  on  which  these  elections 
should  take  place. 

Mr.  Prescott  moved  to  fill  the  blank  with  the  second  Monday 
of  November. 

Mr.  Hubbard  preferred  some  other  day  than  Monday,  because  the 
Sunday  preceding  would,  in  this  town,  be  spent  in  electioneering. 
He  proposed  Wednesday. 

After  some  slight  debate,  in  which  Messrs.  Dearborn,  Holmes, 
Dana,  Walter,  Martin,  Hoyt  and  Parker  took  a  part,  relating  as 
well  to  the  month  as  to  the  day  of  the  week, 

Mr.  Prescott's  motion  was  adopted,  and  the  resolution  being  al- 
tered for  conformity  so  as  to  extend  to  districts,  was  passed. 
The  third  and  fourth  resolutions  were  adopted  without  debate. 
Apportionment  of  the  Senate. — The  committee  proceeded  to  the 
consideration  of  the  resolution  under  discussion  when  the  committee 
rose  yesterday,  viz.,  the  resolution  for  dividing  the  Commonwealth 
into  districts  for  the  choice  of  senators  according  to  population. 

Mr.  Parker  (President)  trusted  no  apology  was  necessary  for  his 
rising  on  this  occasion — he  thought  he  had  not  consumed  more  than 
his  share  of  the  time  of  the  Convention  ;  with  the  gentleman  from 
Littleton,  he  hated  long  speeches,  except  such  as  that  which  the 
gentleman  made  when  he  made  the  declaration,  and  which  seemed 
in  his  mind  (Mr.  F.)  to  be  an  exception.  Gentlemen  from  all  parts 
of  the  House  had  prefaced  their  remarks  with  a  profession  of  no  in- 
tention to  violate  any  fundamental  principle  of  the  constitution  ;  yet 
some  of  those  same  gentlemen  had  yesterday,  in  part,  voted  for 
a  resolution  which,  in  his  opinion,  violated  one  of  the  vital  and  fun- 
damental principles  of  the  constitution.  He  trusted  it  was  from  a 
misapprehension  of  the  nature  of  the  proposition — he  was  certain 
that  in  a  number  of  individuals  this  was  the  case,  and  that  having 
had  time  for  reflection,  they  had  changed  their  opinions.  In  the 
opinion  of  the  framers  of  the  constitution  the  most  important  prin- 
ciple in  the  form  of  government,  was  the  system  of  checks  and  bal- 


262  MASSACHUSETTS    CONVENTION. 

ances.  The  sentiment  had  been  repeatedly  expressed  here,  that  a 
system  of  checks  and  balances  in  the  different  departments  of  the 
government,  and  between  the  branches  of  the  Legislature,  was  es- 
sential to  the  preservation  of  liberty.  There  had  formerly  been 
doubts  on  this  subject,  but  it  might  now  be  considered  to  be  the 
unanimous  voice  of  the  civilized  world  ;  and  the  general  prevalence 
of  the  doctrine  might  be  in  a  great  measure  attributed  to  the  elo- 
quence and  learning  of  one  who  was  now  a  member  of  the  Conven- 
tion. The  sentiment  was  expressed  in  the  preamble  to  one  of  the 
reports  made  to  this  Convention,  and  afterwards,  though  no  practical 
purpose  was  intended  by  it,  it  was  thrown  into  the  form  of  a  resolu- 
tion, was  unanimously  adopted,  and  is  now  on  record  as  expressing 
the  opinion  of  every  individual  in  this  House.  It  could  not  be  ex- 
pected therefore  that  there  should  be  any  vote  of  this  body  incon- 
sistent with  that  principle.  He  could  have  had  no  apprehension 
until  the  passing  of  the  vote  yesterday,  of  any  disposition  to  abolish 
the  check  which  the  two  houses  of  the  Legislature  have  upon  each 
other.  What  was  the  principle  that  was  considered  of  so  much  im- 
portance ?  Not  merely  having  two  houses  chosen  at  the  same  time, 
in  the  same  districts  and  by  the  same  persons — but  meeting  in  two 
rooms ;  two  bodies  thus  constituted  would  come  together  with  the 
same  views  and  agitated  by  the  same  passions.  The  principle  re- 
quired that  there  should  be  two  bodies  organized  in  such  a  manner 
that  each  might  have  an  effectual  check  upon  the  other.  The 
gentleman  from  Roxbury  said  yesterday  that  the  system  in  our  con- 
stitution was  a  novel  one  and  no  where  else  to  be  found  in  the  civ- 
ilized world.  If  it  was  so,  he  (Mr.  P.)  considered  it  an  honor  to 
Massachusetts  to  have  invented  such  a  system.  That  gentleman 
had  travelled  over  classic  ground  to  show  that  there  were  no  such 
examples,  but  there  was  no  more  analogy  between  the  ancient  re- 
publics and  the  governments  now  to  be  found  in  the  United  States 
than  there  was  between  the  most  cruel  despotism  of  Asia,  and  the 
freest  government  on  earth.  What  is  the  senate  of  Massachusetts  ? 
It  comes  from  the  people,  and  is  chosen  by  the  people,  and  it  is  not 
in  the  power  of  anybody  of  men,  however  rich,  to  obtain  an  undue 
influence  over  it.  Suppose  there  are  among  its  numbers  five  or  six 
men  who  are  rich,  they  can  have  no  more  power  than  any  other 
members.  Rich  men  are  no  more  likely  to  be  elected  than  in  the 
other  branch.  They  have  no  more  influence  in  the  elections,  as 
they  go  to  the  polls  with  no  more  power  than  the  poorest  voter. 
He  thought  that  the  gentleman  in  censuring  the  organization  of  this 
body,  was  led  away  by  his  enthusiastic  admiration  for  ancient  times. 
Mr.  Parker  asked,  should  there  be  a  check  of  one  branch  of  the 
Legislature  upon  the  other  ?  Every  gentleman  answered  that  there 
should.  What  should  it  be  ?  In  many  of  the  governments  of  the 
states  of  the  Union  there  was  an  organization  similar  in  substance 
to  that  in  ours,  though  the  mode  was  something  changed.  The 
senate  of  the  United  States  is  chosen  in  a  different  manner  from  the 
house   of  representatives ;  it  is  chosen  by  the  legislatures  of  the 


MASSACHUSETTS    CONVENTION.  263 

states,   representing  the  sovereignty  of  the  states.     There  was  no 
state  in  the  Union  except  Connecticut,  Rhode  Island  and  Maine, 
which  had  not  established  a  check,  by  a  different  mode  of  represen- 
tation of  the  people,  in  the  two  branches.     In  some,  the  distinction 
was  made  by  enlarging  the  qualifications  of  the  electors — in  others 
in  the  qualifications  of  the  persons  elected — and  in  others  by  giving 
a  longer  duration  in  office.     It  would  no  doubt  be  more  acceptable 
to  the  people  of  this  State  to  preserve  the  present  mode  than  to  pro- 
long the   term  of  office.     In  New  Hampshire  an  organization  was 
adopted  similar  to  ours.     In  New  York,  the  senators  were  chosen  for 
four  years  and  no  persons  were  allowed  to  vote  in  the  election  of  them 
but  freeholders.     The  senate  was  therefore  more  directly  formed  upon 
property  than  ours.     In  Pennsylvania  the  members  of  the  senate  were 
elected  for  four  years.    In  Delaware  for  two  years,  with  a  qualification 
of  property  in  the  electors.     In  Maryland,  the  senate  was  chosen  for 
four  years.     In  Virginia,  for  four  years.     In  North  Carolina  the  sena- 
tors are  required  to'  be  possessed  of  three  hundred  acres  of  land  in  fee. 
In  South  Carolina  no  person  can  be  elected  representative  but  such 
as  are  possessed   of   five  hundred   acres    of  land  and  ten  negroes. 
And  for  the  senate  the  qualification  is  a  thousand  acres  of  land  or  an 
equivalent  in  personal  property.     He  proceeded  to  state  other  exam- 
ples.    There  was  a  great  number  of  free  republics  who  have  grown 
up  in  the  sunshine  of  liberty,  and  with  the  example  of  the  whole 
world  before  them,  have  settled  their  forms  of  government  upon  a 
principle  similar  to  that  which  is  found  in  ours.     It  was  extraordi- 
nary that  any  one  should  say  that  this  was  a  novel  principle,  and 
for  that  reason  to  be  expunged  from   our  constitution.     The  mode 
was  a  little  different,  but  it  was  here<more  consistent  with  the  prin- 
ciples of  civil  liberty,  than  in  any  of  the  instances  which  he  had 
enumerated.     The  representation  in  our  Legislature  was  founded 
upon  two  principles — in  the  most  numerous  branch,  upon  the  pro- 
portion of  population,  and  in  the  other,  on  the  proportion  of  taxa- 
tion.    The  latter  principle  did  not  give  rich  men  any  greater  influ- 
ence in  the  senate ;  it  gave  them  no  more  influence  in  the  choice  of 
the  senate  ;  it  was  merely  that  the  people  should  be  represented  in 
the  senate  in  proportion  to  the  contributions  of  each  district  to  the 
support  of  the  public  burthens.     In  the  lower  house  the  proportion 
of  numbers  was  departed  from  only  in  favor  of  towns  that  had  been 
before  represented.     On  what  did  the  right  of  towns  rest  ?     It  was 
on  the  ground  that  it  was  granted  to  them  by  the  constitution.     On 
what  does  the  right  of  counties  or  districts  to  be  represented  accord- 
ing to  their  taxation  rest  ?     It  was  secured  to  them  by  the  constitu- 
tion.    Both,  it  was  true,  the  people  might  alter,  but  if  one  system 
was  altered,  the  other  should  be.     If  this  resolution  was  accepted, 
we    ought  for    consistency's  sake  to  follow  up  the  measures  pro- 
posed by  the  gentleman  from  Roxbury,  and  divide  the  State  into 
equal  districts  for  representatives.     He  proceeded  to  illustrate  the 
injustice  of  destroying  the  principle  of  representation  in  the  senate, 
and  preserving  to  the  towns  their  right  of  representation  in  the  other 


264  MASSACHUSETTS     CONVENTION. 

branch,  and  stated  the  precise  principle  on  which  the  senatorial  rep- 
resentation is  founded.  He  said  that  in  examining  the  constitution, 
he  found  ample  reasons  to  satisfy  him  that  we  were  not  wiser  than 
our  predecessors.  He  reverenced  the  constitution,  though  he  was 
not  afraid  to  touch  it,  because  there  were  undoubtedly,  through  in- 
advertence on  the  part  of  its  framers,  or  from  a  change  of  circum- 
stance, defects  which  might  be  remedied.  He  hoped  gentlemen 
would  pause  before  they  adopted  any  measure  which  should  subvert 
its  fundamental  principles. 

Mr.  Laavrence  of  Groton  said  the  resolution  before  the  committee 
was  a  proposition  to  introduce  a  new  principle  into  the  constitution. 
He  should  think  it  proper  to  consider  it,  not  as  an  abstract  proposi- 
tion, but  as  connected  with  the  subject  of  the  house  of  representa- 
tives. The  gentleman  from  Roxbury,  (Mr.  Dearborn)  proposed  to 
make  population  the  basis  of  both  branches  of  the  Legislature.  In 
this  plan  there  was  something  like  consistency.  Another  mode  of 
constituting  the  house  of  representatives,  was  the  one  reported  by 
the  select  committee ;  and  that  proposed  by  the  gentleman  from 
Worcester,  (Mr.  Lincoln)  was  a  third.  He  was  glad  to  see  all  these 
plans  brought  forward,  because  they  might  be  compared  together, 
and  because  it  was  improper  to  organize  one  branch  of  the  Legisla- 
ture without  having  reference  to  the  other.  If  we  were  forming  an 
original  constitution,  it  might  perhaps  be  proper  to  adopt  the  plan 
of  the  gentleman  from  Roxbury  ;  but  we  were  to  consider  the  con- 
stitution under  which  we  have  lived  for  forty  years.  Our  towns 
had  long  been  in  the  exercise  of  corporate  rights,  and  would  be  un- 
willing to  give  them  up.  He  would  not  say  that  we  might  not 
with  their  consent,  change  the  principle  of  choosing  representatives, 
but  they  would  be  unwilling  to  change,  and  he  thought  the  present 
system  was  the  best.  More  talents  were  brought  together,  and  there 
was  a  better,  and  in  times  of  difficulty,  a  more  efficient  representa- 
tion of  the  whole  Commonwealth,  than  could  be  obtained  in  any 
other  way.  He  would  not  depart  from  this  system  unless  it  were 
necessary  to  preserve  equality ;  but  if  the  plan  of  the  gentleman 
from  Roxbury,  in  regard  to  the  senate,  should  prevail,  this  could  not 
be  retained  with  consistency.  He  then  proceeded  to  consider  the 
scheme  introduced  by  the  gentleman  from  Worcester.  What  was 
the  basis  of  it  ?  Corporate  rights.  What  were  corporate  rights  ? 
Property.  He  said  it  was  the  most  unjust  and  unequal  representa- 
tion that  could  be  devised.  It  was  demonstrable,  that  it  would 
enable  one  third  part  of  the  population  to  secure  a  majority  in  the 
house  of  representatives.  Another  objection  to  it  was,  that  repre- 
sentatives ought  to  be  paid  out  of  the  public  chest.  To  provide  for 
this  was  one  of  the  objects  of  calling  this  Convention,  but  on  this 
plan  it  would  be  glaringly  unjust.  Mr.  L.  said,  that  as  the  present 
principle  of  the  senate  had  been  in  operation  forty  years,  and  no  in- 
convenience had  been  experienced  from  it,  it  was  proper  to  adhere 
to  it,  and  urged  the  necessity  of  retaining  it  on  account  of  its  con- 
nection with  the  system  reported  by  the  select  committee. 


MASSACHUSETTS     CONVENTION.  265 

Mr.  Slocum  spoke  in  favor  of  the  resolution. 

Mr.  Lincoln  requested  that  before  his  proposition  was  declared 
unequal,  it  might  be  examined,  and  before  he  was  pronounced  un- 
just, he  might  be   heard  in  his  defence.     The  question  now  under 
consideration  was  on  what  principle  should  the  representation  in  the 
senate  be  founded  ?     He  agreed  in  the  sentiment  that  a  free  govern- 
ment must  be  founded  on  a  system  of  checks  and  balances — and  it 
was  on  this  principle  that  he  supported  the  resolution  offered  by  the 
gentleman  from  Roxbury.     But  he  did  not  admit  that  to  obtain  this 
check  it  was  necessary  to  assume  the  principle   of  a  representation 
of  property  in  either  branch.     It  was  attained  by  adopting  a  different 
mode   of  representation  for  the  two  branches  as  well  as  a  different 
principle.     The  object  of  a  check  was  equally  attained  by  adopting 
different  qualifications  for  electors,  or  different  periods  of  election. 
If  it  was  shown  by  argument,  by  experience,  or  by  arithmetical 
calculation  that  any  principle  was  unequal,   that  ought  to  be  aban- 
doned, and  another  adopted  not  susceptible  of  the  objection.     He 
should  proceed  to  show  the  inequality  and  unjust  operation"  of  the 
old  principle,  and  then  endeavor  to  show  that  the  effect  contem- 
plated from  checks  may  be  secured  by  another  principle   not  liable 
to    these    objections.      If  it  should  be  shown  that  representation 
according  to  valuation  was  not  just,  and  that  the  object  could  be 
attained   by  letting  the  whole  people  vote  for  one  branch,  and  free- 
holders only  for  the  other — by  choosing  one  for  two  years  and  the 
other  for  one,   or  in  any  other  mode  which  is  not  unequal — this 
principle  should  be  abandoned.     He  admitted  that  if  senators  were 
to  be  chosen  from  certain  districts,   and   representatives  from   the. 
same,  and  for  the  same  period,  according  to  the  plan  of  the  gentle- 
man from  Roxbury,  there  would  be  no  check.     But   it  was  not  so 
with  the  plan  which  he  had  proposed.     He  had   proposed  that  the 
representatives  in  the  other  branch   should  be  chosen  by  towns — 
and  the  system  would  then  be  analogous  to  that  of  the  Congress  of 
the  United  States,   reversing  the  terms  only,  one   representing   the 
corporations  of  towns  and    the  other   the    population.      Was  the 
principle  of  representation   in    the    senate    equal  and   just  ?     Our 
government  is  one   of  the    people,  not  a  government  of  property. 
Representation  is  founded  on  the  interests  of  the  people.     It  is  be- 
cause they  have  rights  that  they  have  assumed  the  power  of  self 
government.     Property  is  incompetent  to  sustain  a  free  government. 
Intelligence  alone  can  uphold  any  free  government.     In  a  govern- 
ment of  freemen   property    is    valuable    only    as    the    people  are 
intelligent.     Were  it  not  for  a  government  of  the  people,  the  people 
would  be  without  property.     But  it  is  contended  that  this  system  is 
justified  by  another  principle.     Representation  and  taxation  have 
been  described  as  twin  brothers.     But  this  principle  has  not  been 
fully  understood.     It  does  not  follow  that  there  shall  be  an  unequal 
representation,  that  taxation  may  be  represented.     It  is  only  neces- 
sary that  all  who  are  taxed  should  be  represented,  and  not  that  they 
should  be  represented  in  proportion  to  their  tax.     Boston  would  be 
34 


266  MASSACHUSETTS    CONVENTION. 

represented  if  it  had  but  a  single  member.  This  was  the  principle 
which  was  contended  for  in  the  revolution,  and  that  revolution  would 
never  have  been  effected  if  we  had  had  a  single  representative  in  the 
British  parliament.  Secure  the  right  of  representation  ;  but  in  the 
regulation  01  that  right,  you  may  restrict  it  to  any  proportion  what- 
ever. Whether  you  are  represented  by  one  or  forty-five,  it  is  utterly 
in  vain  to  complain  that  you  have  no  representation.  But  any  other 
distribution  of  representation  than  according  to  population,  is  une- 
qual and  unjust.  He  alluded  to  the  case  mentioned  yesterday  by 
the  gentleman  from  Roxbury  of  one  senator  for  the  county  of 
Suffolk  for  every  7,500  inhabitants,  while  there  was  in  the  county 
of  Berkshire  but  one  for  every  20,000,  which  he  pronounced  to  be 
an  instance  of  most  gross  and  cruel  inequality.  He  stated  the  case 
of  an  individual  lately  deceased  whose  property  of  1,300,000  dollars 
alone,  would  have  as  much  influence  in  the  senate  as  1300  indepen- 
dent farmers  with  a  property  of  1000  dollars  each.  This  principle 
conferred  upon  a  dangerous  part  of  the  community  an  undue  and 
unwarrantable  share  in  the  representation.  A  man  of  1,300,000 
dollars  property  surrounded  by  1299  others  of  no  property,  confers 
on  them  an  influence  equal  to  the  same  number  of  independent  men 
worth  1000  each.  He  contended  that  if  it  was  a  sound  principle 
that  property  should  confer  the  right  of  representation,  it  ought  not 
to  be  restricted,  and  Suffolk  should  have  eight  senators.  Imposing 
the  restriction  was  admitting  that  the  principle  was  false  and  unjust. 
Taking  population  as  the  basis,  no  inequality  would  result.  He 
protested  against  any  misapprehension  of  his  feelings  and  motives — 
he  had  no  disposition  to  excite  jealousies,  nor  to'prevent  the  exer- 
cise of  rights — if  they  Were  founded  upon  principle.  He  professed 
a  great  respect  for  the  people  of  the  metropolis — but  he  protested 
against  their  borrowing,  through  the  respect  entertained  for  the  town, 
any  influence  that  was  not  secured  to  every  other  part  of  the  people. 
Mr.  Sullivan  said  that  he  had  abstained  from  taking  part  in  debate 
for  the  reason  that  those  gentlemen  who  had  been  deputed  to 
consider  particular  parts  of  the  constitution,  were  most  competent 
to  show  the  reasons  on  which  their  reports  had  been  founded.  That 
having  been  on  the  legislative  committee,  he  thought  it  might  be 
proper  to  take  some  part  in  this  debate,  on  the  principles  on  which 
the  report  of  the  select  committee  rested.  That  when  a  constitu- 
tion is  to  be  formed  originally,  or  a  constitution  is  to  be  revised,  the 
governing  object  is,  to  compromise  and  conciliate  as  to  conflicting 
interests,  and  to  produce  a  result  in  which  a  majority  may  agree. 
The  select  committee  were  impressed  with  the  necessity  of  reducing 
the  number  of  representatives — and  of  reducing  the  expense  of  leg- 
islation. But  on  the  other  hand  the  privilege  so  long  had  by  the 
towns,  of  being  represented  in  the  General  Court,  could  not  be 
abandoned.  Besides  these  considerations  the  committee  could  not 
disregard  the  expression  of  public  opinion,  repeatedly  occurring  in 
the  house  of  representatives,  that  the  members  should  be  paid  from 
the  public  treasury.     The  purpose  of  the  committee  was  to  compare 


MASSACHUSETTS    CONVENTION.  267 

opinions,  and  to  concede  on  one  side  and  the  other,  until  some  result 
was  obtained,  which  could  be  reported  with  confidence.  That  with 
such  inducements  he  had  yielded  his  own  opinions,  and  that  he  had 
consented  to  a  scale  of  representation,  very  favorable  to  small  towns, 
and  to  payment  out  of  the  public  treasury,  provided  that  the  princi- 
ple of  the  senate  might  be  preserved.  Not  that  the  principle  of  the 
senate  ought  to  be  purchased.  That  principle  was  more  defensible 
than  any  one  in  the  constitution.  But  in  the  process  of  arrange- 
ment respect  must  be  had  to  the  impressions  which  were  entertained, 
by  men  whose  opinions  are  always  entitled  to  respect.  Upon  such 
motives  he  had  assented  to  the  report  of  the  committee,  and  was 
decidedly  of  opinion,  that  if  it  could  not  be  supported,  the  convention 
would  find  itself  under  the  necessity  of  establishing  some  other  sys- 
tem embracing  the  whole  subject  of  legislation.  Mr.  S.  said  he 
doubted  whether  the  people  had  sent  us  into  a  Convention  to 
change  any  of  the  fundamental  principles  of  the  constitution  ;  and 
that  if  it  had  been  submitted  to  the  community  to  decide  whether 
such  power  should  be  given,  they  would  have  refused  it  by  a  great 
majority.  That  the  people  must  be  presumed  to  be  satisfied, 
by  their  own  experience  of  the  present  constitution ;  that  they 
desired  no  change  but  such  as  the  circumstances  of  the  Common- 
wealth had  rendered  necessary.  That  a  glance  at  the  constitution 
would  show,  that  as  a  whole,  it  is  the  most  perfect  system  that  human 
wisdom  had  ever  devised.  It  is  in  America,  for  the  first  time  since 
human  society  has  been  known,  that  there  has  been  applied  to  a 
republican  government  the  true  principle  of  checks  among  the  de- 
partments of  government,  whereby  each  may  be  kept  in  its  proper 
sphere  of  action,  and  by  acting  rightly  itself,  compel  the  other 
departments  to  do  the  same. 

This  principle  has  been  known  and  applied  (with  some  great 
defects)  in  one  government  only  in  the  •world,  before  our  own  ;  and 
these  defects  are,  perhaps,  hastening  (under  peculiar  circumstances) 
that  government  to  some  great  and  serious  change.  Experience  has 
developed  no  defect  in  our  system.  It  may  be  pronounced  in  prin- 
ciple to  be  perfect — and  ought  to  be  held  sacred.  It  is  impossible 
to  imagine  a  more  perfect  system  in  substance,  than  that  which  we 
have  been  living  under.  The  executive  power  arising  from  among 
the  people  ;  and  for  a  short  term.  The  people  reserving  for  them- 
selves the  power  to  take  their  fellow-citizen  from  the  elevation  which 
they  voluntarily  gave  him,  and  of  confounding  him  with  the  mul- 
titude, whenever  they  find  one  whom  they  prefer — and  an  executive 
council  being  a  negative  on  the  governor,  and  keeping  him  within 
proper  limits.  An  organization  of  the  legislative  power  into  two 
branches  ;  each  having  a  negative  on  the  other — and  the  executive 
a  qualified  negative  on  both.  A  judicial  power  totally  separate 
from  either  of  the  others,  but  vested,  in  extreme  cases,  with  the 
necessary  power  of  deciding,  whether  the  Legislature  have  transcend- 
ed, by  accident  or  mistake,  their  limit  of  authority — a  power 
exercised  only  in  cases  of  most  obvious  and  urgent  necessity.    What 


268  MASSACHUSETTS    CONVENTION. 

system  of  checks  and  balances  was  ever  more  perfect  in  prin- 
ciple, or  practice — and  how  cautiously  ought  we  to  proceed  in 
recommending  any  essential  change  in  its  features.  The  proposition 
now  is,  to  make  a  change,  and  one  of  alarming  character.  Our 
progenitors  saw  the  necessity  of  establishing  such  a  difference  be- 
tween the  two  branches  of  the  Legislature,  as  to  make  not  a  nominal, 
but  a  substantial  check.  The  principle  of  the  house  of  representa- 
tives is  equality,  perfect  equality  as  to  numbers  which  are  to  be 
represented  ;  in  the  senate,  a  representation  not  founded  on  numbers, 
but  on  a  principle  designed  to  distinguish  this  branch  essentially 
from  the  other.  As  there  was  an  obvious  propriety  in  representing 
in  the  first  branch,  the  feelings,  interests,  wishes,  and  wants  of  the 
people,  a  numerous  delegation  is  sent  from  among  the  people  to  take 
care  of  these — and  with  the  exclusive  power  to  originate  all  bills 
which  pertain  to  the  raising,  or  using  of  money.  The  other  branch, 
very  small,  comparatively,  in  numbers,  and  invested  with  distinct 
powers,  and  among  others  the  important  one  of  listening  to  the 
impeachment  of  the  highest  executive  and  judicial  officers,  was 
necessarily  founded  on  some  other  principle  ;  and  none  was  more 
obvious  than  that  of  property,  since  in  a  well  balanced  republic,  the 
personal  rights  of  the  citizen  are  well  secured,  and  rarely  in  danger  ; 
while  nine  in  ten,  of  all  the  laws,  relate  in  some  measure  to  property. 
The  constitution  was  framed  too  at  a  time  when  the  great  principle  of 
no  taxation  without  representation  was  not  only  understood,  but  the 
country  involved  in  a  war  of  dreadful  consequences,  to  maintain 
that  principle  ;  and  of  most  disastrous  effects  if  the  war  should  not 
have  been  successful.  There  was  then  great  fitness  and  wisdom  in 
apportioning  that  branch  of  the  government,  on  the  amount  of  taxes 
paid  in  given  districts — for  it  not  only  made  a  distinct  branch  found- 
ed on  a  distinct  basis,  but  that  basis  was  the  most  reasonable,  and 
proper,  as  it  rests  on  security  of  property,  which  next  after  personal 
security,  is  the  great  end  and  object  of  government.  There  is  no 
constitution  on  this  continent  where  some  such  principle  of  distinc- 
tion between  the  two  branches  has  not  been  recognized,  with  two 
or  three  exceptions.  The  distinction  is  effected  in  one  of  three 
modes — the  senators  are  elected  for  2,  3,  or  4  years — with  annual 
rotation  of  a  part — 2d,  requiring  that  electors  should  be  proprietors 
of  real  estate — 3d,  that  the  members  of  the  senate  should  be  proprie- 
tors of  real  estate  in  a  great  amount,  and  in  some  of  the  states  all 
these  provisions  are  required.  The  proposition  now  is,  to  abolish 
all  these  distinctions  at  once.  To  elect  the  house  and  senate  by 
the  same  class  of  electors — in  nearly  the  same  sections  of  the  State 
— and  to  distinguish  them  from  each  other  in  nothing  but  the 
difference  of  number — and  that  they  are  not  to  sit  in  one  and  the 
same  apartment.  Without  adverting  to  any  political  distinction  in 
this  Commonwealth — all  the  checks  now  existing  have  been  found, 
in  times  of  strong  excitement,  to  be  but  a  feeble  barrier  to  those 
impulses  to  which  assemblies  of  men,  no  less  than  individuals,  are 
subject.     And  no  caprice  or  propensity  to  violence  and  tyranny  can 


MASSACHUSETTS    CONVENTION.  269 

be  affirmed  of  one  man  which  are  not  equally  applicable  to  assem- 
blies of  men  when  party  feeling  gives  rise  to  passions,  and  silences 
the  voice  of  reason.  Suppose  a  common  feeling  and  interest  be- 
tween the  executive  and  the  two  branches  brought  into  union,  and 
acting  to  resist  political  opponents,  and  with  the  honest  belief  that 
they  are  doing  right  ;  how  easy  would  it  be  for  such  a  combination, 
arranged  out  of  the  halls  of  legislation,  to  give  to  their  wishes  the 
form  of  law — and  to  remove  all  obstacles  to  the  exercise  of  power. 
To  such  a  combination,  nothing  would  be  wanting  but  the  sword, 
to  exhibit  the  lamentable  facts,  which  we  find  in  the  history  of 
other  republics ;  for  such  a  combination  would  have  money,  and  by 
suppressing  the  freedom  of  the  press,  they  would  control  public 
opinion ;  remove  all  judiciary  officers,  and  put  such  men  in  their 
places  as  would  construe  the  laws  according  to  the  wishes  of  the 
dominant  party.  It  is  not  intended  to  characterize  any  one  party, 
but  every  party  ;  it  is  intended  to  allude  only  to  human  nature,  to 
men  as  they  are.  The  difference  between  obedience  to  passion,  as 
between  a  man  and  an  assembly  of  men,  acting  as  a  government, 
is,  that  the  one  acts  against  law,  and  the  other  in  the  name  of  law. 
Mr.  S.  then  went  into  a  discussion  of  the  principle  of  the  senate,  to 
show  that  it  was  not  founded  in  the  representation  of  the  rich,  but 
on  the  principle  of  the  amount  of  taxes  paid  ;  that  the  wealthy 
individual  has  only  his  single  vote,  in  common  with  other  citizens  ; 
and  that  the  members  of  the  senate  represent  the  middling  and  lower 
classes  equally  with  the  wealthy  ;  and  that  wealth  has  no  influence, 
merely  as  such,  over  the  free  will  of  this  intelligent  community, 
which  would  spurn  all  attempts  of  the  wealthy  to  influence  the 
right  of  suffrage,  if  such  attempts  were  ever  made.  Mr.  Sullivan 
said  that  local  feelings  might  be  supposed  to  have  shaped  his  views  ; 
but  he  disclaimed  all  such  influence.  The  deliberations  of  the 
assembly  were  intended  to  fix  principles  which  were  to  operate  for 
a  long  course  of  years  :  and  no  one  would  know  by  whom,  nor  upon 
whom,  these  principles  were  to  be  applied  :  nor  would  any  one  on 
this  occasion  conform  his  measures  to  personal,  or  local  objects. 
Happily  all  considerations  of  this  nature  were  shut  out  of  view,  and 
every  man  must  be  presumed  to  act  not  from  personal,  and  unwor- 
thy motives,  but  from  a  high  sense  of  duty,  however  he  might  differ 
from  others.  Mr.  S.  said  he  conceived  that  the  sole  object  was  to 
recommend  to  the  people  what  might  appear,  to  the  Convention,  to 
be  right,  and  to  trust  to  the  good  sense  of  the  people  at  large,  to 
decide  on  the  merit  of  their  recommendation. 

Mr.  Wilde  of  Newburyport  said  that  he  hoped  that  when  the 
proposition  under  discussion  was  fully  understood,  a  different  decis- 
ion would  be  made  on  it  from  that  which  was  made  by  the  vote  of 
yesterday.  It  takes  away  one  of  the  most  important  checks  of  one 
branch  of  the  Legislature  upon  the  other,  and  which  it  was  ex- 
tremely desirable  should  be  retained,  unless  some  better  could  be 
devised.  It  was  a  check  designed  for  the  greater  protection  of  the 
rights  of  property.     If  we  would  look  over  the  history  of  the  world 


270  MASSACHUSETTS    CONVENTION. 

we  should  find  cases  enough  where  the  want  of  such  a  check  has 
been  felt.     In  the  Roman  commonwealth,  propositions  for  an  equal 
division  of  property,  agitated  the  people  from  century  to  century. 
It  was  no  answer  to  this  argument  that  such  a  disposition  does  not 
prevail  at  present.     That  is  not  a  perfect  system  which  does  not 
provide  for  all  possible  events,  especially  for  those  which  the  history 
of  every  free  people  teaches  us  have  taken  place.     He  would  sup- 
pose a  case,  not  improbable,  which  might  occur  to  the  Legislature 
of  this  State, — that  the  house  of  representatives  should  propose  to 
raise  all  taxes  on  property  and  not  on  polls,  or  on  personal  property, 
and   not  on  real.     In   such  case,  the  senate,  as  now  constituted, 
would,  more  naturally  than   the  house,  oppose  such  a  proposition. 
If  circumstances  rendered  it  proper  they  might  accede  to  it.     They 
would  have  a  reasonable  disposition  to  oppose  it,  and  nothing  more. 
The  system  had  been  called  a  novel  one :  this  was  no  objection,  if 
it  were  true,  in  the  mind  of  a  wise  man.     If  it  were,  all  improve- 
ments would  be  rejected.     We  were  the  last  people  that  ought  to 
object  to  novelty.     Our  whole  system  of  government  is  a  novelty. 
When  it  was  first  adopted  it  was  condemned  as  a  solecism.     But 
experience    has  proved    its   value.       Constitutions  restraining    the 
powers  of  the  legislature  are  a  novelty.     It  had  been  maintained 
that  the  system  was  unjust, — because  no  man  of  property  was  enti- 
tled to  more  weight  than  one  who  has  none.     The  principle  was 
not  true  to  its  full  extent.     It  was  a  principle  admitted  in  all  private 
corporations,  that  all  persons  who  have  a  larger  share  should  have  a 
larger  vote.    So  in  the  community.    That  portion  which  contributes 
most  to  the  public  burthens  should  have  the  greatest  weight  in  the 
government.    The  reason  why  it  was  not  carried  into  effect  directly 
in  regard  to  individuals,  was  because  it  was  not  practicable.     But  it 
did  not  on  that  account  "follow  that  the  principle  should  not  operate 
to  any  extent.     It   might  be  said  that  it  would  give  the  rich  man 
power  to  oppress  the   poor.     This  was  impossible.     If  the   senate 
were  all  rich  men,  and  disposed  to  be  unjust,  the  house  of  repre- 
sentatives would  have  a  complete  check  upon  them.     The  gentle- 
man from   Worcester  appeared  not  to  have   fully  considered  the 
nature  of  the  scheme.     It  did  not  give  to  an  individual  of  large 
property,  the  weight  in  the  government  of  a  number  of  individuals 
whose  property  united  amounted  to  the  same  sum.     He  proceeded 
to  explain  the  operation  of  the  scheme  as  it  affected  the  influence  of 
individuals.     He  was  opposed  to  the  present  resolution  because  it 
was  repugnant  to  a  number  of  resolutions  which  had  been  adopted, 
and  because  it  would  totally  defeat  the  scheme  proposed  by  the 
select  committee,  founded  on  a  compromise  of  various  interests,  a 
part  of  which  could  not  be  adopted  to  the  exclusion  of  the  rest, 
without  great  injustice.     He  stated  other  objections  to  the  resolu- 
tion. 

Mr.  Austin  of  Boston  said,  before  we  exchanged  the  principle  on 
which  our  senate  was  now  constituted,  for  the  new  one  proposed  by 
the  gentleman  from  Roxbury,  we  should  first  ascertain  what  is  the 


MASSACHUSETTS    CONVENTION.  271 

present  principle.  It  was  not  marked  by  those  aristocratical  tenden- 
cies which  gentlemen  had  asserted.  It  gave  no  more  power  to  the 
rich  than  to  the  poor,  nor  secured  their  property  in  a  different  man- 
ner. There  was  no  analogy  between  our  constitution  and  the  in- 
stitution of  patricians  and  plebeians  in  Rome,  to  which  that  gentle- 
man had  alluded.  Nor  was  our  senate  a  citadel  for  the  rich,  as  it 
had  been  called  by  his  colleague  (Mr.  Blake).  It  was  no  direct 
representation  of  wealth.  In  some  of  the  United  States  there  was 
such  a  direct  representation.  A  representation  founded  on  taxation 
was  a  representation  of  the  whole  people,  and  our  senators  were 
elected  on  popular  principles.  Rich  men  alone  might  be  elected  if 
rich  men  alone  had  the  privilege  of  voting  ;  but  that  was  not  the 
case.  To  show  that  there  was  no  danger  to  be  apprehended  from 
the  senate  as  at  present  constituted,  he  spoke  of  the  characters  of 
the  men  who  had  heretofore  been  elected  senators — men  of  integrity 
and  patriotism — the  blaze  of  whose  genius  had  at  times  illumined 
the  course  the  people  were  to  pursue.  The  comparison  made  by 
the  gentleman  from  Worcester  (Mr.  Lincoln),  between  the  house 
of  representatives  of  the  United  States,  and  a  senate  founded  on 
the  principle  of  this  resolution,  was  not  a  just  one.  In  the  constitu- 
tion of  the  United  States,  taxation  and  representation  go  hand  in 
hand.  If  Virginia  sends  20  representatives  and  Massachusetts  10, 
Virginia  must  pay  double  the  tax  of  Massachusetts.  If  gentlemen 
were  willing  to  carry  the  principle  through,  and  tax  Berkshire  as 
much  as  they  tax  Boston,  then  it  would  be  fair  that  Berkshire 
should  have  as  many  senators  as  Boston.  The  same  gentleman  had 
asked,  If  the  present  principle  was  correct  and  equal,  why  restrict 
it  ?  If  Boston,  from  her  valuation,  was  entitled  to  eight  senators, 
why  take  up  with  six  ?  For  a  very  good  reason, — for  the  sake  of 
compromise.  If  extreme  rights  were  to  be  insisted  upon,  we  could 
form  no  constitution.  He  hoped  the  system  reported  by  the  select 
committee,  which  was  a  system  of  compromise,  would  be  accepted 
throughout  the  Commonwealth.  He  was  therefore  against  the 
present  resolution. 

On  motion  of  Mr.  Foster  of  Littleton,  the  committee  rose — 239 
to  64 — and  reported  their  agreement  to  the  resolutions  in  the  second 
report  of  the  select  committee,  and  that  on  other  subjects  committed 
to  them  they  had  made  some  progress,  and  they  asked  leave  to  sit 
again,  which  was  granted. 

Mr.  Woodbridge  of  Stockbridge,  on  behalf  of  Mr.  Bliss,  chair- 
man of  the  committee  on  the  declaration  of  rights,  who  was  absent 
on  account  of  ill  health,  presented  a  report  of  that  committee,  differ- 
ing in  form  only  from  their  former  report,  which  had  been  recom- 
mitted. 

The  report  was  read  and  ordered  to  be  printed. 

The  House  adjourned. 


272  MASSACHUSETTS    CONVENTION. 

Thursday,  December  14. 

The  House  met  at  9  o'clock,  and  attended  prayers  offered  by  the 
Rev.  Mr.  Palfrey. 

The  journal  of  yesterday  was  read. 

The  president  nominated  the  following  gentlemen  to  be  of  the 
committee  for  reducing  to  form  the  amendments  which  should  be 
agreed  upon,  viz.  :  Messrs.  Jackson  of  Boston,  Wilde  of  Newbury- 
port,  L.  Lincoln  of  Worcester,  Holmes  of  Rochester,  Woodbridge 
of  Stockbridge,  J.  Davis  of  Boston,  Nichols  of  South  Reading, 
Dutton  and  Prescott  of  Boston. 

Mr.  Webster  of  Boston  moved  that  the  abovementioned  com- 
mittee should  be  instructed  to  take  into  consideration  the  time 
when  the  constitution  as  amended  shall  go  into  effect.     Agreed  to. 

Mr.  Freeman  of  Sandwich  offered  a  resolution  that  it  is  expedi- 
ent to  make  a  provision  in  the  constitution,  that  no  able-bodied 
citizen  between  the  ages  of  18  and  45,  shall  be  exempted  from  mili- 
tary duty,  or  some  equivalent  therefor  ;  judges  of  the  supreme 
court,  ministers  of  the  gospel,  and  quakers  excepted.  By  a  vote 
of  8 1  to  33  it  was 

Ordered,  That  the  resolution  be  referred  to  the  select  committee  on  the  fourth  reso- 
tion  which  respects  the  governor,  militia,  &c. 

Apportionment  of  the  Senate. — On  motion  of  Mr.  Prescott,  the 
House  went  into  committee  of  the  whole  on  the  unfinished  business 
of  yesterday,  Mr.  Q<uincy  in  the  chair. 

The  committee  proceeded  to  the  consideration  of  the  resolution 
under  discussion  yesterday,  for  dividing  the  Commonwealth  into 
districts  for  the  choice  of  senators  according  to  population. 

Mr.  Abbot  of  Westford  rose  to  explain  the  reasons  of  the  vote 
he  should  give  on  the  present  question.  He  was  not  unfriendly  to 
the  rights  of  the  people,  but  he  could  not  join  in  the  tune  which 
had  been  so  long  sung  in  respect  to  them,  the  chorus  of  which  had 
been  swelled  so  loud  by  other  gentlemen ;  he  was  not  accustomed 
to  such  music.  The  question  was,  whether  a  representation 
founded  on  property  were  just  or  not.  It  appeared  to  him  that 
when  some  men  bring  in  more  into  the  common  stock  of  the  com- 
munity than  others,  they  ought  to  have  a  greater  voice  in  the  gov- 
ernment. It  was  so  in  corporations  generally  ;  the  greatest  con- 
tributors have  a  power  in  proportion,  but  with  some  limitations. 
The  gentleman  from  Worcester  (Mr.  Lincoln)  had  said  that  if  the 
principle  were  just  there  should  be  no  limitation.  He  did  not  con- 
ceive so.  And  if  the  principle  of  population  were  taken,  there  would 
be  the  same  reason  for  a  limitation  ;  otherwise  one  county  might 
increase  so  much  as  to  have  a  majority  in  the  senate.  It  was  said 
by  the  gentleman  from  Dartmouth  (Mr.  S locum)  that  taxation  and 
representation  should  go  hand  in  hand.  If  so,  and  no  one  would 
question  it,  then  a  county  which  pays  more  than  another  should  be 
entitled  to  a  greater  representation.  It  had  been  stated  that  wealth 
had  an  influence  sufficient  to  protect  itself;  he  would  give  it  an  influ- 


MASSACHUSETTS    CONVENTION.  273 

ence  that  should  be  legitimate,  otherwise  it  would  exercise  an  ille- 
gitimate influence.  He  thought  there  was  no  danger  from  this  repre- 
sentation. He  had  learned  from  the  writings  of  a  venerable  mem- 
ber of  the  Convention,  that  life  and  liberty  and  civil  rights  were  as 
dear  to  the  rich  as  the  poor,  and  this  would  be  a  check  upon  them. 
Gentlemen  who  knew  him  would  do  him  the  justice  to  believe  that 
he  was  not  influenced  by  interested  motives.  He  could  apply  to 
himself  what  an  eminent  man  in  Great  Britain  had  said  before  him, 
"  I  have  been  compelled  to  study  to  live,  not  live  to  study/'  But 
he  should  vote  against  the  present  resolution,  because  he  thought  a 
representation  of  property  was  right. 

Mr.  Blake  was  most  decidedly  and  unequivocally  opposed  to 
the  proposition  of  the  gentleman  from  Roxbury,  because,  in  his 
judgment,  it  would  have  the  effect  to  transform  the  most  beautiful 
feature  of  the  constitution  into  a  mass  of  deformity — to  introduce 
confusion  in  place  of  order — injustice  in  place  of  justice — and  to 
form  a  new  government  on  a  plan  altogether  different  from  that 
which  is  found  in  our  present  constitution.  The  principle  of  sena- 
torial representation  had  been  called,  unjustly,  an  aristocrat ical 
principle.  There  was  no  such  principle  in  the  constitution.  The 
people  only  were  regarded  in  every  part  of  it.  It  was  formed  at  a 
time  when  it  would  be  impossible  that  any  such  principle  could  have 
been  introduced  into  it ;  when  there  was  a  greater  hatred  of  tyranny 
and  unequal  privileges  than  at  any  other,  and  by  men  most  attached 
to  true  republican  principles.  It  was  a  truly  republican  constitu- 
tion, and  for  that  reason  he  liked  it.  He  had  been  a  republican  in 
the  most  gloomy  times  ;  it  was  fashionable  to  be  a  republican  now, 
and  he  should  not  be  disposed  to  desert  republicanism  at  such  a 
time.  He  considered  the  constitution  of  this  Commonwealth  the 
purest  and. most  perfect  model  of  republican  government  that  ever 
existed  on  the  face  of  the  globe.  There  cannot  be  found  in  any 
state,  or  in  the  world,  a  constitution  so  free  and  liberal  as  that  of 
Massachusetts,  which  we  now  have,  independent  of  any  amend- 
ments which  may  be  proposed.  He  said  that  he  had  used  the  other 
day  a  very  improper  figure,  when  he  called  the  senate  the  rich 
man's  citadel.  It  was  no  more  the  citadel  of  the  rich  than  of  the 
poor  man.  It  was  the  only  branch  of  the  government  which  was 
particularly  designed  for  the  protection  of  property :  and  this  pro- 
tection was  as  important  for  those  who  have  little  as  for  those  who 
have  much.  He  proceeded  to  take  a  view  of  the  constitution  as  a 
mutual  contract,  by  which  those  men  who  contributed  most. ought 
to  have  the  greatest  influence.  He  replied  to  some  of  the  arguments 
of  the  gentleman  from  Worcester  (Mr.  Lincoln)  yesterday.  Mr. 
L.  admitted  that  there  ought  to  be  a  connection  between  repre- 
sentation and  taxation,  but  that  the  principle  did  not  require  that 
there  should  be  any  proportion  between  them.  Upon  this  principle 
all  that  was  required  of  the  towns  of  Hull  and  Boston  was.  that 
each  should  have  one  representative.  It  was  absurd  to  contend 
that  the  principle  was  adhered  to,  unless  there  was  some  proportion 
35 


274  MASSACHUSETTS    CONVENTION. 

between  their  respective  taxes  and  representation.  In  reply  to  a 
remark  in  relation  to  the  revolution,  Mr.  B.  said  that  he  was  in  an 
error  in  regard  to  the  history  of  those  times,  if  one  representative 
in  the  British  Parliament  would  have  satisfied  the  people  of  this 
country.  The  gentleman  had  argued  that  government  was  founded 
on  intelligence,  and  not  on  property.  Mr.  B.  had  thought  that 
something  further  was  necessary, — that  virtue  and  morality  were 
necessary  ;  and  besides,  with  all  the  intelligence,  wisdom,  and  vir- 
tue in  the  universe,  government  could  not  be  supported  without 
money.  The  gentleman  had  complained  that  the  property  of  an 
individual  in  the  county  of  Berkshire  had  not  the  same  influence  as 
the  same  amount  of  property  in  Suffolk.  This  was  not  correct  in 
point  of  fact.  Any  amount  of  property  in  Berkshire,  or  any  other 
county,  counts  dollar  for  dollar  for  the  like  amount  in  Suffolk — and 
this  operation  of  the  principle  makes  the  system  equal. 

Mr.  Saltonstall  of  Salem  observed  that  this  Convention  exhibited 
a  singular  and  most  interesting  scene.  A  free  people  by  their  dele- 
gates assembled  to  deliberate  upon  the  constitution  under  which 
they  have  so  long  lived,  inquiring  into  its  operations,  and  whether 
there  is  any  evil  that  requires  amendment.  It  is  a  subject  of  grati- 
tude that  while  the  nations  of  the  old  world  are  obliged  to  submit 
to  reforms,  dictated  by  standing  armies,  we  are  witnessing  this  quiet 
scene.  But  there  is  also  much  cause  of  anxiety.  A  short  time 
since  we  were  all  happy  under  the  present  constitution.  There 
was  no  symptom  of  uneasiness,  no  project  for  a  convention.  Our 
government  secured  to  us  all  the  objects  for  which  civil  society  was 
instituted.  The  separation  of  a  part  of  the  Commonwealth,  ren- 
dered it  expedient  to  propose  to  the  people  the  question  of  a  conven- 
tion, and  it  was  adopted  by  a  very  small  vote, — a  fact  which  shows 
conslusively  that  no  evil  was  pressing  on  the  people  ;  that  no  griev- 
ance loudly  demanded  a  remedy.  But  now,  amidst  constant  pro- 
fessions of  veneration  for  the  instrument,  every  part  of  it  is  attacked, 
and  we  are  called  on  to  defend  the  elementary  principles  of  govern- 
ment. First,  we  abolish  one  session  of  the  Legislature,  which  has 
existed  for  two  centuries ;  we  then  dispense  with  the  necessity  of 
a  declaration  which  has  existed  from  the  beginning  ;  we  disown 
that  the  people  ever  enjoyed  their  rights  in  the  election  of  counsel- 
lors. And  now  the  foundation  of  a  great  branch  of  the  government 
is  attacked,  as  unjust  and  aristocratic.  Is  the  constitution  to  be 
thrown  by  as  an  old-fashioned  piece  of  furniture,  that  answered 
well  enough  in  its  day,  but  is  now  fit  only  to  be  stowed  away  in  the 
lumber  room  with  the  portraits  of  our  ancestors  ?  Let  us  rather 
meet  the  objections,  listen  to  the  arguments,  correct  the  evil,  if  one 
is  shown  to  exist,  and  the  constitution  will  come  out  of  the  fiery 
furnace  unhurt,  still  more  precious  for  the  trial  it  has  endured.  Mr. 
S.  then  observed  that  he  had  not  expected  a  serious  attempt  would 
be  made  to  change  the  basis  of  the  senate  ;  that  it  had  not  been  a 
cause  of  dissatisfaction  :  that  nothing  had  been  written  or  said 
against  it  until  the  separation  of  Maine  :  that  there  was  occasionally 


MASSACHUSETTS    CONVENTION.  275 

some  difficulty  as  to  the  fractions,  and  some  irritation  in  the  forma- 
tion of  districts,  but  no  serious  disaffection  ;  and  he  believed  no 
objection  was  ever  made  to  it  in  the  Legislature,  as  unjust  or  une- 
qual. He  had  thought  also  that  the  constitution  was  endeared  to 
the  people  from  the  circumstances  under  which  it  was  made. — in 
the  midst  of  war  ;  our  independence  not  yet  secure  ;  while  our 
armies  were  yet  in  the  field.  At  such  a  time  the  convention  met, 
and  deliberately  discussed  the  great  principles  of  government,  and 
framed  the  present  system  of  government.  There  were  circum- 
stances also  calculated  especially  to  endear  this  part  of  the  constitu- 
tion to  us.  When  the  convention  assembled,  a  majority  were  op- 
posed to  two  branches  ;  they  thought  the  people  needed  no  check  : 
like  the  gentleman  from  Worcester,  they  thought  the  people  were 
capable  of  self-government.  Its  analogy  to  the  old  council  had 
also  a  tendency  to  render  it  odious;  it  also  savored  a  little  of  aris- 
tocracy, and  the  leaders  Of  that  day  had  been  irritated  under  the 
influence  of  the  old  government :  yet  they  listened  to  the  sages 
who  were  with  them,  and  adopted  the  principle.  The  present  basis 
of  the  senate  is  perfectly  defensible  in  theory.  Some  check  on  the 
popular  branch  is  necessary :  this  is  admitted  by  all.  Mr.  S.  then 
referred  to  history, — the  English  parliament,  —  to  the  national 
assembly,  &c,  to  show  its  necessity.  There  are  times  when  pop- 
ular ferments  are  excited,  that  would  destroy  everything  fair  and 
valuable  in  society,  if  unchecked.  Mr.  S.  then  remarked  on  the 
different  systems  proposed.  That  by  Mr.  Dearborn  would  be  no 
check.  Both  branches  will  be  chosen  by  the  same  people  in  the 
same  districts.  Both  would  be  subject  to  the  same  inffuence  ;  be 
under  the  same  control ;  and  the  senate  would  have  no  more  opera- 
tion as  a  check,  than  the  same  men  in  the  other  branch.  Another 
proposition  is  the  novel,  the  fanciful,  the  fallacious  one  by  the  gen- 
tleman from  Worcester,  which  would  have  the  senate  the  popular 
branch,  to  be  checked  by  the  house  !  A  popular  branch  of  thirty- 
six  to  be  checked  by  three  hundred  and  fifty  !  But  what  is  to  check 
the  house  ?  That  will  be  the  popular  branch,  emanating  from  the 
people,  warmed  with  all  their  passions.  What  are  these  corporate 
rights  ?  There  is  nothing  tangible  in  them,  which  can  form  a 
check.  Mr.  S.  then  went  on  to  show  that  there  was  no  analogy 
between  this  plan  and  the  constitution  of  the  United  States,  as  had 
been  argued  by  Mr.  Lincoln.  He  thought  the  people  would  never 
adopt  a  system  of  cheeks,  by  making  different  tenures  to  office,  or 
different  qualifications  to  voters.  What  then  remains  but  to  pre- 
serve the  present  basis  ;  to  cling  to  that  which  has  been  so  wise  in 
theory,  and  so  salutary  in  practice  ?  It  is  an  admirable  provision, — 
the  representation  of  a  great  interest,  and  yet  not  dangerous  to  any 
other.  It  is  the  result  of  a  new  modification  which  will  give  a 
spirit  of  independence  to  the  senate,  and  make  them  indeed  a  check 
— not  to  thwart  the  other  branch,  but  to  watch,  to  cause  delibera- 
tion. Property  should  be  represented,  because  it  is  the  greatest 
object  of  civil  society  :  it  is  not  mere  inert  matter,  but  a  living  prin- 


276  MASSACHUSETTS    CONVENTION. 

ciple,  which  keeps  the  great  machine  of  society  in  motion.  It  is 
the  universal  stimulus.  The  principle  of  the  senate  is  not  unequal 
in  its  operation,  but  the  same  everywhere,  in  all  places  ;  not  for 
Suffolk  or  Essex — Essex  has  nothing  to  gain,  but  may  lose  much, 
by  this  arrangement.  It  is  not  for  the  rich,  but  for  the  security  of 
all  men  and  all  interests,  as  it  will  make  an  effectual  check  for  the 
preservation  of  every  right.  If  in  theory  this  is  wise,  how  much 
more  valuable  is  it  after  forty  years'  experience.  Experiment  is 
worth  everything  upon  this  subject.  We  should  be  unwilling  to 
touch  what  is  made  venerable  by  age.  We  should  cautiously 
advance  any  theory  of  our  own,  against  a  system  that  has  been  in 
operation  half  a  century.  .  The  situation  of  Massachusetts  is  a  proud 
one.  She  has  braved  the  storm  which  has  overwhelmed  so  many 
old  governments.  They  that  laughed  us  to  scorn  are  now  looking 
to  us  with  admiration,  and  studying  our  systems.  Mr.  S.  then  re- 
ferred to  the  difficulties  in  the  committee, — said  he  thought  there 
ought  not  to  be  any  limitation  in  the  principle  of  the  senate,  so 
much  was  given  up  in  the  other  branch, — that  in  theory  there  was 
nothing  dangerous  in  this  principle,  but  that  they  did  not  come 
there  to  make  a  constitution  on  strict  theories,  but  to  inquire  what 
was  the  best  that  was  practicable.  He  also  observed  upon  the  plan 
of  Mr.  Lincoln,  and  pointed  out  its  extreme  inequality  upon  the 
different  parts  of  the  Commonwealth. 

Mr.  Locke  of  Billerica  said  it  would  seem  like  presumption  in 
him,  after  the  eloquence  and  ingenuity  with  which  the  subject  had 
been  treated,  to  attempt  to  add  anything  to  the  force  of  the  argu- 
ment. He  rose  rather  in  deference  to  the  wishes  of  some  of  his 
friends,  than  from  his  own  inclination.  If  he  had  any  preposses- 
sions when  he  came  into  the  Convention,  they  were  in  favor  of 
adopting  the  principle  of  population,  as  the  basis  of  apportionment 
for  the  senate.  It  at  first  seemed  from  an  indistinct  view,  some- 
what unequal,  that  the  more  wealthy  parts  of  the  Commonwealth 
should  have  a  greater  representation  in  proportion  to  the  number  of 
inhabitants,  than  the  other  parts.  But  further  examination  had  sat- 
isfied his  mind  fully,  that  the  present  system  was  not  only  best  in 
theory,  but  has  decided  advantages  in  its  practical  operation.  Al- 
luding to  the  remarks  of  the  gentleman  from  Roxbury,  he  said,  he 
professed  to  have  very  little  of  that  gentleman's  learning — his  read- 
ing had  not  been  extensive,  but  what  he  had  read,  had  left  a  very 
distinct  impression  on  his  mind,  that  the  constitution  of  this  Com- 
monwealth had  extracted  from  the  various  forms  of  government, 
that  had  been  in  operation  in  other  countries,  all  that  was  thought 
to  be  useful.  There  was  retained  in  the  executive  department 
something  of  the  monarchical  form  ; — in  the  senate  "the  advantages 
of  the  aristocratic,  without  its  objections,  and  in  the  house  of  rep- 
resentatives more  of  the  democratic  principle.  He  argued  that  on 
the  scheme  of  the  gentleman  from  Roxbury,  the  advantages  of  a 
check  of  one  branch  upon  another  of  the  Legislature,  the  grand  ob- 
ject of  two  branches,  could  not  be  attained.     He  proceeded  to  state 


MASSACHUSETTS    CONVENTION.  277 

the  difficulties  and  embarrassments  which  the  select  committee  had 
been  obliged  to  contend  with,  in  fixing  upon  any  system  of  reduc- 
tion for  the  house  of  representatives,  which  should  be  satisfactory 
to  themselves,  and  which  should  be  acceptable  to  the  people,  and 
the  principle  on  which  they  had  proceeded  in  adopting  a  system, 
which,  while  it  took  from  the  small  towns  the  right  of  being 
annually  represented,  reserved  to  them  an  equivalent  advantage. 
There  would  be  no  equality  in  proposing  a  system  which  should 
preserve  to  the  smallest  town  its  right  to  a  representative,  while  it 
gave  to  a  town  of  twenty-four  hundred  inhabitants  no  more,  and  to 
Boston  only  one  for  four  thousand  inhabitants.  He  did  not  believe 
that  the  gentleman  from  Worcester,  could  have  considered  the  plan 
proposed  by  him,  in  its  operations  upon  the  large  towns ;  for,  with 
his  moral  sense  of  justice,  he  would  not  have  proposed  a  plan  of 
such  inequality. 

Mr.  Lincoln  rose  to  explain.  He  thought  it  disengenuous  in 
gentlemen,  to  allude  to  a  proposition  whicli  he  had  made,  without 
any  connection  with  any  other.  This  question  should  depend  on 
its  own  merits,  and  the  Convention  may  reject  or  adopt  the  propo- 
sition whicli  he  ha'd  presented.  He  did  not  contend  that  it  was  just 
and  equal  in  itself,  but  in  connection  with  the  representation  in  the 
senate,  on  the  basis  of  valuation,  it  would  form  an  effectual,  and 
the  only  effectual  check. 

Mr.  Locke  proceeded  to  compare  the  three  systems  of  representa- 
tion which  had  been  proposed,  ^md  to  argue  in  favor  of  the  adop- 
tion of- that  reported  by  the  committee.  He  said  he  understood, 
that  some  gentlemen  approved  of  the  plan  proposed  by  the  gentle- 
man from  Roxbury,  for  the  senate,  and  that  they  thought  it  fair  to 
couple  it  with  the  house  of  representatives,  proposed  in  the  system 
of  the  select  committee.  To  him  it  appeared  manifestly  unjust  to 
take  this  part  of  the  system,  without  at  the  same  time  adopting  the 
part  relating  to  the  senate.  He  observed,  that  seme  went  on  the 
principle,  that  the  senate  was  founded  on  the  basis  of  property. 
This  was  not  true.  The  basis  was  taxation.  The  wealthy  dis- 
tricts were  allowed  a  greater  proportion  of  representation  in  the 
senate,  not  with  a'view  to  the  protection  of  property,  but  because 
they  were  made  to  contribute  so  much  to  the  support  of  the  public 
burdens.  He  concluded  by  giving  his  testimony  to  the  fairness  and 
liberality  of  the  members  of  the  committee  from  the  large  towns, 
and  their  readiness  to  yield  everything  that  could  be  demanded  in 
the  spirit  of  fair  and  equal  compromise. 

Mr.  Adams  of  Quincy.  I  rise,  with  fear  and  trembling,  to  say  a 
few  words  on  this  question.  It  is  now  forty  years  since  I  have  in- 
termingled in  debate  in  any  public  assembly.  My  memory  and 
strength  of  utterance  fail  me,  so  that  it  is  utterly  impossible  for  me 
to  discuss  the  subject  on  the  broad  ground,  on  which  gentlemen, 
who  have  spoken  before  me,  have  considered  it.  The  constitution 
declares,  that  all  men  are  born  free  and  equal.  But  how  are  they 
born  free  and  equal  ?     Has  the  child  of  a  North  American  Indian, 


278  MASSACHUSETTS    CONVENTION. 

when  born,  the  same  right  which  his  father  has,  to  his  father's  bow 
and  arrows  ?  No — no  man  pretends  that  all  are  born  with  equal 
property,  but  with  equal  rights  to  acquire  property.  The  great  ob- 
ject is  to  render  property  secure.  Without  the  security  of  property, 
neither  arts,  nor  manufactures,  nor  commerce,  nor  literature,  nor 
science  can  exist.  It  is  the  foundation  upon  which  civilization 
rests.  There  would  be  no  security  for  life  and  liberty  even,  if  prop- 
erty were  not  secure.  Society  is  a  compact  with  every  individual, 
that  each  may  enjoy  his  right  for  the  common  good.  In  the  state 
of  nature  the  Indian  has  no  defence  for  his  little  hut,  or  his  veni- 
son, or  anything  that  he  acquires,  but  his  own  strength.  Society 
furnishes  the  strength  of  the  whole  community,  for  the  protection 
of  the  property  of  each  individual. 

One  of  the  most  difficult  questions  now  to  be  settled,  is,  in  what 
manner  the  representation  in  the  two  branches  of  the  Legislature 
shall  be  organized.  If  representation,  founded  on  the  basis  of  pop- 
ulation, could  proceed  upon  the  principle  of  every  vote  having  an 
equal  right  throughout  society,  I  should  agree  to  it.  But  this  is  im- 
possible. Every  town  cannot  have  a  representative,  and  the  repre- 
sentation be  in  proportion  to  the  population.  Between  the  small 
towns  of  Hull,  or  Q,uincy,  and  Boston,  the  inequality  is  so  great, 
that  a  departure  from  the  principle  of  population  is  necessary.  We 
must,  therefore,  get  some  principle  of  expediency.  I  should  be  sat- 
isfied with  the  constitution  as  it  stands,  if  it  were  possible  to 
retain  it. 

The  report  of  the  select  committee  is  a  compromise,  a  mutual 
concession  of  various  parts.  The  large  towns  have  made  quite  as 
great  concessions  as  any  part  of  the  country.  Suffolk  is  to  have 
but  six  senators ;  in  proportion  to  its  property  it  would  have  more. 
The  eloquent  gentleman  from  Roxbury,  has  alluded,  with  propri- 
ety, to  the  ancient  republics  of  Athens  and  Rome.  My  memory  is 
too  defective  to  go  into  details,  but  I  appeal  to  his  fresher  reading, 
whether  in  Athens  there  were  not  infinitely  greater  advantages 
given  to  property,  than  among  us.  Aristides  ruined  the  constitution 
of  Solon,  by  destroying  the  balance  between  property  and  numbers, 
and,  in  consequence,  a  torrent  of  popular  commotion  broke  in  and 
desolated  the  republic.  Let  us  come  to  Rome  ;  property  was  infin- 
itely more  regarded  than  here,  and  it  was  only  while  the  balance 
was  maintained,  that  the  liberties  of  the  people  were  preserved. 
Let  us  look  at  the  subject  in  another  point  of  view.  How  many 
persons  are  there,  even  in  this  country,  who  have  no  property? 
Some  think  there  are  more  without  it,  than  with  it.  If  so,  and  it 
were  left  to  mere  numbers,  those  who  have  no  property  would  vote 
us  out  of  our  houses.  In  France,  at  the  time  of  the  revolution, 
those  who  were  without  property,  were  in  the  proportion  of  fifty  to 
one.  It  was  by  destroying  the  balance,  that  the  revolution  was 
produced.  The  French  revolution  furnished  an  experiment,  perfect 
and  complete  in  all  its  stages  and  branches,  of  the  utility  and  excel- 
lence of  universal  suffrage.     The  revolutionary  government  began 


MASSACHUSETTS     CONVENTION.  279 

with  the  higher  orders  of  society,  as  they  were  called,  viz.,  dukes 
and  peers,  archbishops  and  cardinals,  the  greatest  proprietors  of  land 
in  the  whole  kingdom.     Unfortunately,  the  first  order,  although 
very  patriotic  and  sincere,  adopted  an  opinion  that  the  sovereign 
power  should  be  in  one  assembly.     They  were  soon  succeeded  and 
supplanted — banished  and  guillotined,  by  a  second  order,  and  these 
in  their  turn  by  a  third,  and  these  by  a  fourth,  till  the  government 
got  into  the  hands  of  peasants  and  stage-players,  and  from  them  de- 
scended to  jacobins,  and  from  them  to  sans-culottes.     Robespierre, 
who  regularly  descended,  step  by  step,  down  the  whole  length  of 
the  ladder,  now  found  himself  upon  a  level  with  Danton,  who  had 
been  an  equerry  in  the  royal  stables,  a  man  of  strong  mind.     A  ri- 
valry commenced  between  these  two,  for  the  favor  of  the  sans-cu- 
lottes.    Danton  soon  found  that  Robespierre  had  a  large  majority, 
and  in  despair  of  his  own  life,  broke  out  into  this  pathetic  exclama- 
tion :   "  They  have  driven  us  down  to  sans-culottism,  and  sans-cu- 
lottism  has  destroyed  France — sans-culottism  has  ruined  us  all,  and 
sans-culottism  will  very  soon  destroy  itself."     And  thus  it  happened 
— for  the  heads  ©f  Robespierre  and  Danton  both  went  off.  and  the  co- 
lossal despotism  of  Napoleon  sprung  from  the  blood  and  ashes  of 
sans-culottism,  and  desolated  France  and  all  the  rest  of  Europe. 
And  thus  it  has  happened  in  all  ages  and  countries  in  the  world, 
where  such  principles  have  been  adopted,  and  a  similar  course  pur- 
sued.    All  writers  agree,  that  there  are  twenty  persons  in  Great 
Britain,  who  have  no  property,  to  one  that  has.     If  the  radicals 
should  succeed  in  obtaining  universal  suffrage,  they  will  overturn 
the  whole  kingdom,  and  turn  those  who  have  property  out  of  their 
houses.     The  people  in  England,  in  favor  of  universal  suffrage,  are 
ruining  themselves.     Our  ancestors  have  made  a  pecuniary  qualifi- 
cation necessary  for  office,  and  necessary  for  electors ;  and  all  the 
wise  men  of  the  world  have  agreed  in  the  same  thing.     I  consider 
the  question  of  universal  suffrage  as  connected  with  this  relating  to 
the  senate,  and  of  more  importance.     If  the  principle  of  popula- 
tion in  apportioning  senators  and  representatives,  could  be  carried 
through,  I  should  vote  for  it.     But,  as  it  cannot,  and  as  I  consider 
the  scheme  proposed  as  equitable  as  anything  that  can  be  invented, 
I  shall  be  in  favor  of  it,  and  shall,  therefore,  not  vote  for  the  prop- 
osition of  the  gentleman  from  Roxbury. 

Mr..  Dana  of  Groton  said  he  should  undertake  to  present  the 
proposition  before  the  committee  in  but  a  single  point  of  view.  He 
had  had,  when  he  came  here,  a  strong  impression  that  a  senate,  ap- 
portioned on  the  basis  of  population,  might  be  organized,  that  would 
be  not  only  equal,  but  afford  the  necessary  check  upon  the  ot Inn- 
branch — he  had  intimated  this  opinion,  without  pledging  himself  for 
his  ultimate  opinion — he  had  voted  for  the  proposition  of  the  gentle- 
man from  Roxbury.  He  had  wished  to  have  the  scheme  developed, 
that  it  might  be  understood  in  its  different  bearings  ;  and  he  was  glad 
to  hear  the  proposition  of  the  gentleman  from  "Worcester.  He  had 
meditated  upon  the  three  systems,  and  had  come  to  the  conclusion. 


280  MASSACHUSETTS    CONVENTION. 

that  as  he  who  goes  up  to  the  temple  must  go  prepared  to  offer  sac- 
rifice, it  was  proper  for  him,  in  this  case,  to  give  up  some  portion  of 
his  private  opinions,  on  the  altar  of  compromise.  He  had  looked  to 
the  operation  of  the  different  systems,  and  on  examination,  had 
found  one  of  them  at  least,  so  marked  with  inequality  and  injus- 
tice, that  no  ingenuity  could  adjust,  no  ingenuity  could  apologize 
for  it.  The  Convention  had  voted  unanimously,  early  in  the  session, 
that  it  was  not  expedient  to  change  the  system  of  taxation  which 
had  always  been  pursued  in  this  Commonwealth.  Tb  retain  this 
system,  and  to  come  to  the  county  of  Suffolk  and  demand  one  fifth 
of  the  taxes  of  the  Commonwealth,  and  to  deprive  it  of  its  proportion 
of  representation  in  the  senate,  was  a  measure  marked  with  so  much 
inequality,  that  as  strong  as  his  desire  was  to  introduce  an  appor- 
tionment on  population,  he  considere'd  it  as  an  impossibility.  Instead 
of  thirty-six,  however,  he  should  prefer  returning  to  the  original 
number  of  forty  senators,  distributing  the  four  additional  ones  among 
the  counties  in  the  interior.  With  this  amendment,  together  with  a 
small  alteration  in  relation  to  the  house  of  representatives,  he  should 
be  satisfied  with  the  report  of  the  committee.  In  order  that  they 
might  proceed  with  that  report,  he  felt  compelled  to  vote  against 
the  proposition  before  the  committee. 

Mr.  Prescott  said  he  had  been  greatly  surprised  by  the  vote  passed 
two  days  ago  on  this  proposition,  and  he  could  only  account  for  it 
on  the  supposition  that  the  subject  was  not  fully  understood.  It 
had  been  permitted  to  pass  to  a  vote  without  full  discussion,  under 
the  impression  that  the  whole  report  of  the  committee,  the  greater 
part  of  which  had  been  adopted  without  opposition,  would  go  to- 
gether. The  Convention  had  assembled  to  amend  the  constitution, 
not  to  form  a  new  one.  The  select  committee  in  the  performance 
of  their  duty,  had  confined  themselves  strictly  to  this  object. 
They  proposed  only  such  alterations  as  a  change  of  circumstances 
had  rendered  necessary.  But  was  the  proposition  on  the  table  offered 
in  the  spirit  of  amendment  ?  Did  it  not  go  to  change  the  funda- 
menfal  principles  of  the  constitution  ?  Who  could  predict  the  con- 
sequences of  changing  the  basis  on  which  one  of  the  departments  of 
the  government  was  founded — a  system  of  representation  founded 
on  equal  justice — on  equal  rights — and  on  that  spirit  of  compromise 
on  which  alone  government  can  be  founded,  and  by  which  alone 
defects  can  be  amended.  In  every  frame  of  government  the  rights 
of  property  as  well  as  personal  rights  are  provided  for.  Persons 
possessing  property,  enjoying  the  fruits  of  successful  industry,  to- 
gether with  those  who  possess  nothing,  enter  into  a  compact  to  secure 
their  rights  both  of  property  and  of  person.  How  is  this  compact 
to  be  formed,  so  that  every  one  may  be  secure  in-his  rights  ?  Those 
who  have  property  surrender  up  as  much  their  personal  rights  as 
those  who  have  none — they  surrender  also  the  control  of  their  prop- 
erty, and  they  should,  in  consequence,  have  a  proportion  of  influence 
in  the  government  equivalent  tb  the  rights  they  give  up.  Unless 
they  have  in  some  way  a  voice  in  the  government  by  reason  of  their 


MASSACHUSETTS    CONVENTION.  281 

property,  they  receive  no  equivalent  for  the  rights  which  they  sur- 
render ;  and  no  security  for  that  protection  of  property  which  is  at 
the  foundation  of  government,  and  without  which  civilization  would 
go  back.  The  system  adopted- by  our  constitution,  though  perhaps 
not  the  most  perfect  in  theory,  is  most  congenial  to  the  habits  of  the 
people,  otherwise  it  would  not  have  been  adopted  and  so  long  ap- 
proved. It  was  not  congenial  to  the  habits  of  the  people  to  demand 
a  higher  qualification  for  electors  for  one  branch  of  the  Legislature 
than  for  the  other — nor  a  higher  qualification  of  property  in  the 
persons  elected.  It  was  preferred  to  establish  one  branch  of  the 
Legislature  on  the  principle  of  a  just  proportion  between  taxation 
and  representation.  Is  it  unjust  or  unreasonable  that  the  class  of 
citizens  who. pay  the  greatest  proportion  of  taxes  wherever  they 
may  be,  shall  be  represented  in.  one  branch  of  the  government  in 
some  proportion  to  the  taxes  which  they  pay  ?  It  is  not  that  rich 
men  shall  carry  more  votes  to  the  poll,  have  more  power  or  a  greater 
right  to  office  ;  but  it  is,  that  the  number  of  senators  coming  from 
large  districts  and  chosen  by  the  poor  as  well  as  the  rich  of  those 
districts,  shall  be  in  proportion  to  the  amount  of  taxes  paid  by  the 
districts.  It  is  not  for  the  benefit  of  a  few  rich  men  that  this  pro- 
vision is  made,  but  for  men  of  moderate  property  and  for  all  men 
who  have  property.  The  very  rich,  when  their  property  becomes 
insecure,  may  leave  the  country  and  carry  their  property  with  them. 
It  is  not  so  with  men  of  moderate  property.  They  must  stay  by 
their  country  and  protect  its  rights.  But  there  was  another  principle 
which  rendered  this  provision  important — the  necessity  of  rendering 
one  branch  different  from  the  other,  that  they  might  mutually  check 
each  other.  He  proceeded  to  illustrate  the  nature  and  effect  of  this 
principle  at  some  length,  and  to  enforce  it,  by  the  examples  found 
in  the  constitution  of  the  United  States,  and  in  those  of  nearly  all 
the  states  in  the  Union.  He  inquired  what  were  the  propositions 
now  before  the  Convention.  One  to  introduce  universal  suffrage  ; 
one  to  abolish  all  pecuniary  qualification  for  office,  and  one  to  dis- 
trict the  State  for  both  branches  of  the  Legislature  upon  a  new  prin- 
ciple, and  in  a  manner  which  should  deprive  them  of  the  power  of 
being  a  check  upon  one  another.  He  begged  gentlemen  to  pause 
and  consider  whether  this  were  the  true  work  of  amendment.  The 
proposition  of  the  committee  for  organizing  the  house  of  represen- 
tatives, must  be  considered  in  connection  with  that  before  the  House, 
relating  to  the  senate,  and  it  was  proper  to  consider-also  the  various 
propositions  which  had  been  made  for  arranging  the  representation 
in  both  houses.  It  had  been  well  observed  by  the  gentle  man  from 
Worcester,  that  it  was  incumbent  on  any  gentleman  offering  a  prop- 
osition for  amendment,  to  show  that  it  was  better  than  the  provision 
of  the  present  constitution,  and  better  than  any  other  that  should  be 
proposed.  It  was,  therefore,  incumbent  on  the  gentleman  from 
Roxbury  to  show  that  his  plan  is  better  than  that  of  the  present  con- 
stitution— better  than  that  of  the  select  committee — and  better  than 
any  other  that  has  been  suggested.  What  was  this  Droposition } 
26 


282 


MASSACHUSETTS    CONVENTION. 


If  examined  it  would  be  found  wholly  impracticable.  The  State 
was  to  be  divided  into  thirty-five  equal  districts  of  about  13,000 
inhabitants  each,  for  the  choice  of  both  senators  and  representa- 
tives. Mr.  P.  appealed  to  gentlemen  from  Berkshire,  from  Essex, 
from  Bristol,  or  from  any  other  part  of  the  State,  to  say  in  what, 
manner  these  districts  should  be  formed  within  their  own  neighbor- 
hoods. He  appealed  to  them  if  it  was  not  manifest  from  a  moment's 
reflection  that  these  districts  could  not  be  formed  in  a  satisfactory 
manner.  He  alluded  again  to  the  objection  that  on  this  system  one 
branch  would  have  no  check  upon  the  other.  This  system  was 
formed  something  upon  the  model  of  the  constitution  of  Virginia. 
That  state  is  formed  into  twenty-four  districts  for  the  choice  of 
members  of  both  branches  of  the  legislature.  He  quoted  from  a 
high  authority,  Mr.  Jefferson  in  his  Notes  on  Virginia,  a  censure  on 
this  system,  and  at  the  same  time  a  eulogy  on  that  of  our  own  con- 
stitution. "  The  senate  by  its  constitution  is  too  homogeneous  with 
the  house  of  delegates.  Being  chosen  by  the  same  electors,  at  the 
same  time,  and  out  of  the  same  subjects,  the  choice  falls  of  course 
on  men  of  the  same  description.  The  purpose  of  establishing  differ- 
ent houses  of  legislation  is  to  introduce  the  influence  of  different 
interests  or  different  principles."  '-In  some  of  the  American  states, 
the  delegates  and  senators  are  so  chosen  as  that  the  first  represent 
the  persons,  and  the  second  the  property  of  the  State.  But  with  us, 
wealth  and  wisdom  have  equal  chance  for  admission  into  both 
houses.  We  do  not  therefore  derive  from  the  separation  of  our  Leg- 
islature into  two  houses,  those  benefits  which  a  proper  complication 
of  principles  is  capable  of  producing,  and  those  which  alone  can 
compensate  the  evils  which  may  be  produced  by  their  dissentions." 
But  the  precise  system  which  this  distinguished  statesman,  speaking 
of  the  constitution  of  his  own  state,  condemns,  the  gentleman  from. 
Roxbury  would  introduce  into  this  Commonwealth  in  exchange  for 
one  adapted  to  the  habits  of  our  people,  which  was  approved  by  the 
framers  of  our  constitution,  and  after  the  experience  of  forty  years, 
has  been  found  to  be  attended  with '  no  inconveniences,  and  in  par- 
ticular instances  to  have  possessed  positive  advantages.  He  pro- 
ceeded to  examine  the  proposition  of  Mr.  Lincoln.  He  understood 
that  gentleman  to  admit  that  a  check  of  one  branch  upon  the  other 
was  essential  to  the  preservation  of  a  free  government,  and  that  be- 
cause the  proposition  of  the  gentleman  from  Roxbury  did  not  provide 
this  check,  he  'did  not  approve  his  whole  plan.  He  would  provide 
the  check  in  the  other  house — would  choose  senators  in  large  dis- 
tricts, and  the  representatives  by  towns.  This  proposition  came  in 
the  garb  of  one  founded  on  equal  rights.  The  present  senators  were 
to  be  displaced  and  others  introduced  on  the  proportion  of  popula- 
tion. But  what  principle  did  he  propose  for  the  other  house  ?  It 
was  hardly  possible  to  conceive  one  that  should  be  more  unequal. 
Every  town,  however  small,  was  to  have  one  representative — towns 
of  3,000  inhabitants  to  have  two — and  of  6,500  to  have  three.  The 
whole  number  amounting  to  334.     This  plan  was  so  grossly  unequal, 


MASSACHUSETTS    CONVENTION.  283 

that  certain  towns  containing  half  the  population  of  the  Common- 
wealth, would  choose  three  fourths  of  the  representatives.  169  small 
towns,  containing  153,000  inhabitants,  less  than  a  third  of  the  whole 
State,  would  choose  169  representatives,  a  majority  of  the  whole 
house.  Thus  the  liberties  of  the  majority  would  be  put  in  subjec- 
tion to  the  minority,  in  violation  of  the  fundamental  principle  of 
every  free  government.  The  laws  would  be  made  by  the  represen- 
tatives of  a  minority  of  the  people.  It  was  the  principle  of  every 
free  government  that  the  majority  should  rule.  Where  the  laws  are 
made  by  the  minority,  whether  that  minority  is  one  or  a  hundred, 
it  is  tyranny,  and  the  laws  so  made  are  not  to  be  executed.  Whether 
it  is  the  senate  of  Rome  or  the  emperor  of  France  with  his  great 
officers  of  state,  or  a  privileged  number  among  the  people,  it  ceases 
to  be  a  free  government.  Adopt  this  system,  and  this  will  be  its 
operation.  Call  it  by  what  name  you  will,  our  rights  are  gone,  not 
for  this  day  only,  but  for  our  children  after  us.  By  this  system,  it 
is  proposed  that  6,000  inhabitants  shall  be  required  to  give  an  addi- 
tional representative,  while  the  representatives  in  a  majority  of  the 
towns  are  to  be  on  an  average  one  for  every  820  inhabitants.  He 
examined  also  the  scheme  proposed  by  the  gentleman  from  North-! 
ampton.  This  although  liable  to  fewer  objections  than  the  other, 
he  thought  could  not  be  admitted,  because  it  would  disturb  the  an- 
cient rights  and  usages  of  the  Commonwealth.  He  proceeded  to 
examine  in  detail  the  plan  of  the  committee.  He  pointed  out  many 
of  its  features  which  ought  to  reconcile  it  particularly  to  the  small 
towns,  and  showed  that  it  presented  by  far  the  fewest  advantages  to 
the -large  towns.  One  important  feature  of  the  system  was,  that  the 
representatives  were  to  be  paid  out  of  the  public  chest.  This  the 
public  never  would  have  consented  to,  and  never  ought  to  consent 
to,  miless  the  number  of  representatives  was  reduced.  This  system 
presents  to  the  small  towns  the  advantages  of  having  a  represen- 
tative every  other  year,  to  be  paid  out  of  the  public  treasury,  instead 
of  a  right  to  choose  a  representative  every  year,  with  an  influence 
diminished  in  proportion  to  the  numbers  of  the  house,  and  with  the 
burden  of  paying  him  themselves.  The  town  of  Boston  will  send 
thirteen  and  pay  for  sixty.  If  necessary  to  make  this  system  more 
acceptable  to  the  small  towns,  he  was  willing  to  propose  an  amend- 
ment, that  on  the  year  of  a  general  valuation,  which  recurs  once  in 
ten  years,  all  towns  should  be  represented  and  paid  out  of  the  public 
treasury. 

Mr.  Story.  We  are  at  length  arrived  at  the  discussion  of  those 
questions,  which  it  was  easy  to  foresee  would  be  attended  with  the 
most  serious  interest  and  difficuly — questions  which,  indeed,  were 
the  principal  causes  of  assembling  this  Convention.  Nor  do  I  regret 
it.  The  great  powers  of  eloquence  and  argumentation  which  have 
already  been  displayed  in  the  debate,  I  trust  will  do  good  here,  and 
ultimately  reach  the  homes  of  our  constituents.  I  cannot  hope,  after 
the  very  ample  discussion  which  the  subject  has  undergone,  to  add 
much  to  the  arguments,  and  shall  content  myself  with  such  illus- 
trations of  my  views  as  have  not  been  completely  presented  by  others. 


284  MASSACHUSETTS     CONVENTION. 

If  it  were  necessary  for  my  purpose,  I  might  say.  with  the  gen- 
tleman from  Worcester,  that  I  come  here  pledged  to  no  man  or  set 
of  men,  or  to  any  settled  course  of  measures.  I  come  merely  as  the 
delegate  of  one  town  to  co-operate  with  other  gentlemen,  the  dele- 
gates of  other  towns,  in  such  measures  as  the  public  good  may  re- 
quire, and  in  their  wisdom  and  discretion  I  place  entire  confidence. 
I  might  add  also  what  my  eloquent  colleague  has  already  remarked, 
that  upon  this  particular  topic  and  upon  the  grounds  which  we  take, 
we  are  not  in  a  situation  even  to  be  suspected  of  interested  motives. 
The  county  of  Essex  is  safe  at  present,  and  would  have  a  fair  and 
equal  representation  in  the  senate,  whether  the  principle  of  popula- 
tion or  valuation  were  adopted  as  a  basis.  But  if  population  were 
assumed  as  a  basis,  and  no  restriction  were  interposed,  it  is  highly 
probable  that  the  county  of  Essex  might  hereafter  be  a  loser ;  but 
upon  the  principle  of  valuation  it  could  never  be  a  gainer,  since  it 
would  now  have  the  whole  number  to  which  it  could  ever  be  en- 
titled. But  1  throw .  away  all  narrow  considerations  of  this  kind, 
and  consider  myself  as  a  delegate  of  the  Commonwealth  bound  to 
consult  for  the  interests  of  the  whole — and  to  form  such  a  constitu- 
tion as  shall  best  promote  the  interest  of  our  children  and  all  pos- 
terity. 

It  is  necessary  for  us  for  a  moment  to  look  at  what  is  the  true 
state  of  the  question  now  before  us.  The  proposition  of  my  friend 
from  Roxbury,  is  to  make  population  the  basis  for  apportioning  the 
senate,  and  this  proposition  is  to  be  followed  up, — as  the  gentleman, 
with  the  candor  and  frankness  which  has  always  marked  his  char- 
acter, has  intimated — with  another,  to  apportion  the  house  of  repre- 
sentatives in  the  same  manner.  The  plan  is  certainly  entitled  to 
the  praise  of  consistency  and  uniformity.  It  does  not  assume  in  one 
house  a  principle  which  it  deserts  in  another.  Those  who  contend 
on  the  other  hand,  for  the  basis  of  valuation,  propose  nothing  new, 
but  stand  upon  the  letter  and  spirit  of  the  present  constitution. 

Here  then  there  is  no  attempt  to  introduce  a  new  principle  in 
favor  of  wealth  into  the  constitution.  There  is  no  attempt  to  dis- 
criminate between  the  poor  and  the  rich.  There  is  no  attempt  to 
raise  the  pecuniary  qualifications  of  the  electors  or  elected — to  give 
to  the  rich  man  two  votes  and  to  the  poor  man  but  one.  The  quali- 
fications are  to  remain  as  before,  and  the  rich  and  the  poor,  and  the 
high  and  the  low  are  to  meet  at  the  polls  upon  the  same  level  of 
equality.  And  yet  much  has  been  introduced  into  the  debate  about 
the  rights  of  the  rich  and  the  poor,  and  the  oppression  of  the  one  by 
the  elevation  of  the  other.  This  distinction  between  the  rich  and 
poor,  I  must  be  permitted  to  say,  is  an  odious  distinction,  and  not 
founded  in  the  merits  of  the  case  before  us.  I  agree  that  the  poor 
man  is  not  to  be  deprived  of  his  rights  any  more  than  the  rich  man, 
nor  have  I  as  yet  heard  of  any  proposition  to  that  effect ;  and  if  it 
should  come,  I  should  feel  myself  bound  to  resist  it.  The  poor 
man  ought  to  be  protected  in  his  rights,  not  merely  of  life  and 
liberty,  but  of  his  scanty  and  hard  earnings,     I  do  not  deny  that  the 


MASSACHUSETTS     CONVENTION.  285 

poor  man  may  possess  as  much  patriotism  as  the  rich  ;  but  it  is  un- 
just to  suppose  that  he  necessarily  possesses  more.  Patriotism  and 
poverty  do  not  necessarily  march  hand  in  hand;  nor  is  wealth  that 
monster  which  some  imaginations  have  depicted,  with  a  heart  of 
adamant  and  a  sceptre  of  iron,  surrounded  with  scorpions  stinging 
every  one  within  its  reach,  and  planting  its  feet  of  oppression  upon 
the  needy  and  the  dependent.  Such  a  representation  is  not  just 
with  reference  to  our  country.  There  is  no  class  of  very  rich  men  in 
this  happy  land,  whose  wealth  is  fenced  in  by  hereditary  titles,  by 
entails,  and  by  permanent  elevation  to  the  highest  offices.  Here  there 
is  a  gradation  of  property  from  the  highest  to  the  lowest,  and  all 
feel  an  equal  interest  in  its  preservation.  If,  upon  the  principle  of 
valuation,  the  rich  man  in  a  district,  which  pays  a  high  tax,  votes 
for  a  larger  number  of  senators,  the  poor  man  in  the  same  district 
enjoys  the  same  distinction.  There  is  not  then  a  conflict,  but  a 
harmony  of  interests  between  them  ;  nor  under  the  present  constitu- 
tion has  any  discontent  or  grievance  been  seriously  felt  from  this 
source. 

When  I  look  around  and  consider  the  blessings  which  property 
bestows,  I  cannot  persuade  myself  that  gentlemen  are  serious  in 
their  views,  that  it  does  not  deserve  our  utmost  protection.  I  do  not 
here  speak  of  your  opulent  and  munificent  citizens,  whose  wealth 
has  spread  itself  into  a  thousand  channels  of  charity  and  public  be- 
nevolence. I  speak  not  of  those  who  rear  temples  to  the  service  of 
the  most  high  God.  I  speak  not  of  those  who  build  your  hospitals, 
where  want,  and  misery,  and  sickness,  the  lame,  the  halt  and  the 
blind,  the  afflicted  in  body  and  in  spirit,  may  find  a  refuge  from 
their  evils,  and  the  voice  of  solace  and  consolation,  administering 
food  and  medicine  and  kindness.  I  speak  not  of  those,  who  build 
asylums  for  the  insane,  for  the  ruins  of  noble  minds,  for  the  broken 
hearted  and  the  melancholy,  for  those  whom  Providence  has  afflicted 
with  the  greatest  of  calamities,  the  loss  of  reason,  and  too  often  the 
loss  of  happiness — within  whose  walls  the  screams  of  the  maniac 
may  die  away  in  peace,  and  the  sighs  of  the  wretched  be  soothed 
into  tranquillity.  I  speak  not  of  these,  not  because  they  are  not 
worthy  of  all  praise  ;  but  because  I  would  dwell  rather  on  those 
general  blessings,  which  prosperity  diffuses  through  the  whole  mass 
of  the  community.  Who  is  there  that  has  not  a  friend  or  relative 
in  distress,  looking  up  to  him  for  assistance  ?  Who  is  there  that  is 
not  called  upon  to  administer  to  the  sick  and  the  suffering,  to  those 
who  are  in  the  depth  of  poverty  and  distress,  to  those  of  his  own 
household,  or  to  the  stranger  beside  the  gate  ?  The  circle  of  kind- 
ness commences  with  the  humblest,  and  extends  wider  and  wider 
as  we  rise  to  the  highest  in  society,  each  person  administering  in 
his  own  way  to  the  wants  of  those  around  him.  It  is  thus  that 
property  becomes  the  source  of  comforts  of  every  kind,  and  dis- 
penses its  blessings  in  every  form.  In  this  way  it  conduces  to  the 
public  good  by  promoting  private  happiness  :  and  every  man  from 
the  humblest,  possessing  property,  to  the  highest  in  the'State,  con- 


286  MASSACHUSETTS     CONVENTION. 

tributes  his  proportion  to  the  general  mass  of  comfort.  The  man 
without  any  property  may  desire  to  do  the  same  ;  but  he  is  neces- 
sarily shut  out  from  this  most  interesting  charity.  It  is  in  this  view 
that  I  consider  property  as  the  source  of  all  the  comforts  and  advan- 
tages we  enjoy,  and  every  man,  from  him  who  possesses  but  a  single 
dollar  up  to  him  who  possesses  the  greatest  fortune,  is  equally  in- 
terested in  its  security  and  its  preservation.  Government  indeed 
stands  on  a  combination  of  interests  and  circumstances.  It  must  al- 
ways be  a  question  of  the  highest  moment,  how  the  property-hold- 
ing part  of  the  community  may  be  sustained  against  the  inroads  of 
poverty  and  vice.  Poverty  leads  to  temptation,  and  temptation  often 
leads  to  vice,  and  vice  to  military  despotism.  The  rights  of  man 
are  never  heard  in  a  despot's  palace.  The  very  rich  man,  whose 
estate  consists  in  personal  property,  may  escape  from  such  evils  by 
flying  for  refuge  to  some  foreign  land.  But  the  hardy  yeoman,  the 
owner  of  a  few  acres  of  the  soil,  and  supported  by  it,  cannot  leave 
his  home  without  becoming  a  wanderer  on  the  face  of  the  earth.  In 
the  preservation  of  property  and  virtue,  he  has,  therefore,  the  deep- 
est and  most  permanent  interest. 

Gentlemen  have  argued  as  if  personal  rights  only  were  the  proper 
objects  of  government.  But  what,  I  would  ask,  is  life  worth,  if  a 
man  cannot  eat  in  security  the  bread  earned  by  his  own  industry  ? 
If  he  is  not  permitted  to  transmit  to  his  children  the  little  inheritance 
which  his  affection  has  destined  for  their  use  ?  What  enables  us  to 
diffuse  education  among  all  the  classes  of  society,  but  property  ? 
Are  not  our  public  schools,  the  distinguishing  blessing  of  our  land, 
sustained,  by  its  patronage  ?  I  will  say  no  more  about  the  rich  and 
the  poor.  There  is  no  parallel  to  be  run  between  them,  founded  on 
permanent  constitutional  distinctions.  The  rich  help  the  poor,  and 
the  poor  in  turn  administer  to  the  rich.  In  our  country,  the  highest 
man  is  not  above  the  people  ;  the  humblest  is  not  below  the  people. 
If  the  rich  may  be  said  to  have  additional  protection,  they  have  not 
additional  power.  Nor  does  wealth  here  form  a  permanent  distinc- 
tion of  families.  Those  who  are  wealthy  today  pass  to  the  tomb, 
and  their  children  divide  their  estates.  Property  thus  is  divided 
quite  as  fast  as  it  accumulates.  No  family  can,  without  its  own  ex- 
ertions, stand  erect  for  a  long  time  under  our  statute  of  descents  and 
distributions,  the  only  true  and  legitimate  agrarian  law.  It  silently 
and  quietly  dissolves  the  mass  heaped  Up  by  the  toil  and  diligence 
of  a  long  life  of  enterprise  and  industry.  Property  is  continually 
changing  like  the  waves  of  the  sea.  One  wave  rises  and  is  soon 
swallowed  up  in  the  vast  abyss  and  seen  no  more.  Another  rises, 
and  having  reached  its  destined  limits,  falls  gently  away,  and  is 
succeeded  by  yet  another,  which,  in  its  turn,  breaks  and  dies  away 
silently  on  the  shore.  The  richest  man  among  us  may  be  brought 
down  to  the  humblest  level ;  and  the  child  with  scarcely  clothes  to 
cover  his  nakedness,  may  rise  to  the  highest  office  in  our  govern- 
ment. And  the  poor  man,  while  he  rocks  his  infant  on  his  knees, 
may  justly  indulge  the  consolation,  that  if  he  possess  talents  and 


MASSACHUSETTS    CONVENTION.  287 

virtue,  there  is  no  office  beyond  the  reach  of  his  honorable  ambition. 
It  is  a  mistaken  theory,  that  government  is  founded  for  one  object 
only.  It  is  organized  for  the  protection  of  life,  liberty  and  property, 
and  all  the  comforts  of  society — to  enable  us  to  indulge  in  our 
domestic  affections,  and  quietly  to  enjoy  our  homes  and  our  fire- 
sides. 

It  has  been  said,  that  the  senate,  under  the  present  constitution, 
is  founded  on  the  basis  of  property.  This  I  take  to  be  incorrect. 
It  is  founded  on  the  basis  of  taxation.  It  gives  no  particular  privi- 
leges to  the  rich  ;  all  have  equal  rights  secured  by  it.  The  gen- 
tleman from  Worcester,  to  show  the  injustice  and  inequality  of  the 
present  system,  has  alarmed  us  with  a  reference  to  the  town  of  Hull. 
Suppose,  said  he,  five  of  the  richest  men  in  Boston  should  remove 
to  Hull — that  removal  would  enable  Hull  to  have  six  senators.  Is 
this  the  case  ?  Is  Hull  a  county  ?  Does  it  constitute  a  senatorial 
district?  No;  the  property  thus  carried  from  Suffolk,  would  be 
transferred  to  the  county  of  Plymouth,  and  would  increase  the 
representation  of  that  county  proportionally  in  the  senate  under  a 
new  valuation.  If  instead  of  going  to  Hull  the  same  persons  should 
remove  to  Salem,  their  property  would  not  produce  the  slightest 
effect,  for  Essex,  without  it.  possesses  a  right  to  as  many  senators  as 
the  constitution  allows  to  any  district.  The  case  supposed  by  the 
gentleman  is  so  extreme,  that  it  could  scarcely  be  supposed  to 
exist ;  and  if  it  did,  no  such  consequences  could  arise  as  have  been 
stated. 

It  has  been  also  suggested,  that  great  property,  of  itself,  gives 
great  influence,  and  that  it  is  unnecessary  that  the  constitution 
should  secure  to  it  more.  I  have  already  stated  what  I  conceive  to 
be  the  true  answer ;  that  a  representation  in  the  senate  founded  on 
valuation,  is  not  a  representation  of  property  in  the  abstract.  It 
gives  no  greater  power  in  any  district  to  the  rich  than  to  the  poor. 
The  poor  voters  in  Suffolk  may,  if  they  please,  elect  six  senators 
into  the  senate  ;  and  so  throughout* the  Commonwealth,  the  sena- 
tors of  every  other  district  may,  in  like  manner,  be  chosen  by  the 
same  class  of  voters.  The  basis  of  valuation  was  undoubtedly 
adopted  by  the  framers  of  our  constitution,  with  reference  to  a  just 
system  of  checks  and  balances,  and  the  principles  of  rational  liberty. 
Representation  and  taxation  was  the  doctrine  of  those  days — a  doc- 
trine for  which  our  fathers  fought  and  bled,  in  the  battles  of  the 
revolution.  Upon  the  basis  of  valuation,  property  is  not  directly 
represented  ;  but  property  in  the  aggregate,  combined  with  personal 
rights — where  the  greatest  burthen  of  taxation  falls,  there  the  largest 
representation  is  apportioned  ;  but  still  the  choice  depends  upon  the 
will  of  the  majority  of  voters,  and  not  upon  that  of  the  wealthier 
class  within  the  district.  There  is  a  peculiar  beauty  in  our  system 
of  taxation  and  equalizing  the  public  burthens.  Our  governor,  coun- 
sellors, senators,  judges,  and  other  public  officers  are  paid  out  of  the 
public  treasury, — our  representatives  by  their  respective  towns. 
The  former  are  officers  for  the  benefit  of  the  whole  Commonwealth  : 


288  MASSACHUSETTS     CONVENTION. 

but  the  right  of  sending  representatives  is  a  privilege  granted  to  cor- 
porations, and,  as  the  more  immediate  agents  of  such  corporations, 
they  are  paid  by  them.  The  travel  however  of  the  representatives 
is  paid  out  of  the  public  treasury,  with  the  view  that  no  unjust  advan- 
tage should  arise  to  any  part  of  the  Commonwealth  from  its  greater 
proximity  to  the  capital.  Thus  the  principle  of  equalizing  burthens 
is  exemplified.  But  even  if  it  were  true  that  the  representation  in 
the  senate  were  founded  on  property,  I  would  respectfully  ask  gen- 
tlemen, if  its  natural  influence  would  be  weakened  or  destroyed  by 
assuming  the  basis  of  population.  I  presume  not.  It  would  still  be 
left  to  exert  that  influence  over  friends  and  dependents  in  the  same 
manner  that  it  now  does  ;  so  that  the  change  would  not  in  the 
slightest  degree  aid  the  asserted  object,  I  mean  the  suppression  of 
the  supposed  predominating  authority  of  wealth. 

Gentlemen  have  argued,  as  though  it  was  universally  conceded  as 
a  political  axiom,  that  population  is  in  all  cases  and  under  all  cir- 
cumstances the  safest  and  best  basis  of  representation.  I  beg  leave 
to  doubt  the  proposition.  Cases  may  be  easily  supposed,  in  which, 
from  the  peculiar  state  of  society,  such  a  basis  would  be  universally 
deemed  unsafe  and  injurious.  Take  a  state  where  the  population  is 
such  as  that  of  Manchester  in  England,  (and  some  states  in  our 
Union  have  not  so  large  a  population)  where  there  are  five  or  ten 
thousand  wealthy  persons,  and  ninety  or  one  hundred  thousand  of 
artizans  reduced  to  a  state  of  vice  and  poverty  and  wretchedness, 
which  leave  them  exposed  to  the  most  dangerous  political  excite- 
ments. I  speak  of  them,  not  as  I  know,  but  as  the  language  of 
British  statesmen  and  parliamentary  proceedings  exhibit  them.  Who 
would  found  a  representation  on  such  a  population,  unless  he  in- 
tended all  property  should  be  a  booty  to  be  divided  among  plunder- 
ers ?  A  different  state  of  things  exists  in  our  happy  Commonwealth, 
and  no  such  dangers  will  here  arise  from  assuming  population  as 
the  basis  of  representation.  But  still  the  doctrine,  in  the  latitude 
now  contended  for,  is  not  well  founded.  What  should  be  the  basis 
on  which  representation  should  be  founded,  is  not  an  abstract  the- 
oretical question,  but  depends  upon  the  habits,  manners,  character 
and  institutions  of  the  people,  who  are  to  be  represented.  It  is  a 
question  of  political  policy,  which  every  nation  must  decide  for  it- 
self, with  reference  to  its  own  wants  and  circumstances. 

The  gentleman  from  Worcester  has  asserted  that  intelligence  is 
the  foundation  of  government.  Are  not  virtue  and  morality  equally 
so  ?  Intelligence  without  virtue  is  the  enemy  most  to  be  dreaded 
by  every  government.  It  might  make  men  despots,  or  bandits,  or 
murderers,  if  their  interests  pointed  in  such  directions.  While  there- 
fore it  may  be  admitted  that  intelligence  is  necessary  for  a  free 
people,  it  is  not  less  true  that  sound  morals  and  religion  are  also  nec- 
essary. Where  there  is  not  private  virtue,  there  cannot  be  public 
security  and  happiness. 

The  proposition  of  the  gentleman  from  Roxbury  is  to  assume 
population  for  the  basis   of  both  houses.     That   of  the  gentleman 


MASSACHUSETTS    CONVENTION.  289 

from  Worcester  is  to  assume  population  for  the  senate  and  corporate 
representation  for  the  house.     The  latter  gentleman  wishes  his  last 
proposition  to  be  considered  distinctly  from  the  first.     It  might  suit 
the  purposes  of  the  gentleman's  argument  so  to  separate  them ;  but 
in  the   nature .  of  things,  with  reference  to  the  doctrine   of  checks 
and  balances,  avowed  and  supported  by  the  gentleman  himself,  they 
are  inseparable.     I  feel  myself  constrained  so  to  consider  them,  as 
parts  of  a  system,  the  value  of  which  must  be  ascertained  by  ex- 
amining the  effects  of  the  whole  combination.     I  am  not  opposed 
in  principle  to  population  as  a  basis  of  representation.     There  is 
much  to  recommend  it.     It  has  simplicity  and  uniformity  and  ex- 
emption from  fraud  in  its  application;  circumstances  of  vast  impor- 
tance in  every  practical  system  of  government.     In  the  select  com- 
mittee, I  was    in  favor  of  a  plan  of  representation   in  the  house 
founded  on  population,  as  the  most  just  and  equal  in  its  operation. 
I  still  retain  that  opinion.     There  were  serious   objections  against 
this   system,  and  it  was  believed  by  others  that  the  towns  could 
not  be  brought  to  consent  to  yield  up  the    corporate   privileges  of 
representation,  which  had  been  enjoyed  so  long,  and  were  so  inti- 
mately connected  with  their  pride  and  their  interests.     I  felt  con- 
strained therefore  with  great  reluctance  to  yield  up  a  favorite   plan. 
I  have  lived  long  enough  to  know  that  in  any  question  of  govern- 
ment, something  is  to  be  yielded  up  on  all  sides.     Conciliation  and 
compromise  lie  at  the  origin  of  every  free  government ;  and  the  ques- 
tion never  was  and  never  can  be,  what  is  absolutely  best,  but  what 
is  relatively  wise,  just  and  expedient.    I  have  not  hesitated  therefore 
to  support  the  plan  of  the  select  committee  as  one  that,  on  the  whole, 
was  the  best  that,  under  existing  circumstances,  could  be  obtained. 
To  the  plan  of  the  gentleman  from  Roxbury  two  objections  ex- 
isted.    The  first  was,  that  it  destroyed  the  system  of  checks  and 
balances  in  the  government,  a  system  which  has  been  approved  by  the 
wisdom  of  ages.     The  value  of  this  system  has  been  forcibly  illus- 
trated by  the  gentleman  from  Boston,  in  the  extract  which  he  read 
from  the  remarks  of  Mr.  Jefferson  on  the  constitution  of  Virginia. 
I  will  not  therefore  dwell  on  this  objection.     The  next  objection  is 
that  it  destroys  all  county  lines  and  distinctions,  and  breaks  all 
habits  and  associations  connected  with  them.     They  might  thus  be 
broken  up,  but  it  was  by  tearing  asunder  some  of  the  strongest  bonds 
of  society.     The  people  of  each  county  are  drawn  together  by  their 
necessary  attendance  upon  the  county  courts,  and  by  their  county 
interests  and  associations.      There  is  a  common  feeling  diffused 
among  the   mass  of  the  population,  which  extends  to,  but  never 
passes  the  boundary  of  each  county  ;  and  thus  these  communities 
become  minor  states.     These  are   valuable   associations,  and  I  am 
not  prepared  to  say  that  they  ought  to  be  given  up  altogether.    The 
system  of  the  gentleman  from  Roxbury,  however,  not  only  obliter- 
ates them,  but  at  the  same  time  is  supposed  to  affect  the   interests 
and  corporate  representation  of  the  towns — a  representation  which, 
with  all  its  inconveniences,  possesses  intrinsic  value.     It  appears  to 
37 


290  MASSACHUSETTS    CONVENTION. 

me  that  the  system  of  the  select  committee,  combining  valuation  as 
the  basis  of  the  senate  with  corporate  representation  of  the  towns 
as  the  basis  of  the  house,  has,  both  as  a  system  of  checks  and  bal- 
ances, and  convenient  and  practical  distribution  of  powers,  some 
advantages  over  that  now  under  discussion. 

It  has  been  said  that  the  system  of  valuation  is  novel,  and  cannot 
be  traced  beyond  the  era  of  the  formation  of  our  present  constitu- 
tion. It  may  be  so  ;  though  the  venerable  gentleman  from  Q,uincy 
has  endeavored  to  show  that  it  is  in  principle  as  old  as  the  republics 
of  Greece  and  Rome.  But  be  it  novel ;  it  is  no  objection  to  it. 
Our  whole  system  of  government  is  novel.  It  is  a  great  experi- 
ment in  the  science  of  politics.  The  very  principle  of  representa- 
tion and  the  theory  of  a  division  of  powers  is  of  modern  origin,  as 
are  many  of  our  dearest  and  most  valuable  institutions. 

It  is  asked  too,  why,  if  the  principle  of  valuation  be  a  just  one, 
there  is  a  restriction  that  no  district  shall  send  more  than  six  sena- 
tors. A  sufficient  reason  has  been  already  given — that  it  was  a 
compromise  to  silence  any  jealousy  of  an  undue  exercise  of  power 
by  any  particular  district  abounding  in  wealth.  My  answer  is,  that 
it  is  also  for  the  purpose  of  equalizing  the  fractions  of  the  smaller 
districts  with  the  great  districts.  The  same  principle  of  equaliza- 
tion had  been  provided  in  forming  the  house  of  representatives,  and 
was  now  more  completely  observed  in  the  system  of  the  select  eom- 
mittee. 

After  all,  what  will  be  the  effect  of  changing  the  basis  of  the 
senate  from  valuation  to  that  of  population  ?  It  will  take  three 
senators  from  Suffolk,  give  two  more  senators  to  the  old  county  of 
Hampshire,  leaving  Berkshire  and  Plymouth  to  struggle  for  one 
more,  and  Norfolk  and  Bristol  to  contend  for  another,  the  disposition 
of  which  may  be  doubtful.  All  the  rest  of  the  Commonwealth 
will  remain  precisely  in  the  same  situation,  whether  we  adopt  the 
one  basis  or  the  other.  Yet  even  this  change  will  not  produce  any 
serious  practical  result,  if  we  look  forward  twenty  years.  Suffolk  has 
increased  within  the  last  ten  years,  ten  thousand  in  the  number  of 
its  inhabitants,  that  is  to  say,  one  quarter  part  of  its  population  :  a 
much  greater  ratio  of  increase  than  the  rest  of  the  State.  Popula- 
tion will  probably  from  the  like  causes  continue  to  increase  on  the 
seaboard,  or  at  least  in  the  capital,  from  its  great  attractions,  in  a 
ratio  quite  as  great  beyond  that  of  the  interior.  So  that  in  a  short 
time  the  difference  of  the  two  systems  will  be  greatly  diminished, 
and  perhaps  finally  the  inland  counties  will  gain  more  by  the  res- 
triction of  the  districts  to  six  senators  than  they  will  now  gain  by 
the  basis  of  population.  In  fifty  years  Suffolk  upon  this  basis  may 
entitle  itself  not  to  six  only,  but  to  eight. 

Now  I  would  beg  gentlemen  to  consider,  if  in  this  view  of  the 
subject  a  change  in  the  basis  of  the  senate  can  be  useful  ?  The 
constitution  has  gone  through  a  trial  of  forty  years  in  times  of  great 
difficulty  and  danger.  It  has  passed  through  the  embarrassments  of 
the  revolutionarv  war,  through  the  troubles  and  discontents  of  1787 


MASSACHUSETTS    CONVENTION.  291 

and  1788,  through  collisions  of  parties  unexampled  in  our  history  for 
violence  and  zeal,  through  a  second  war  marked  with  no  ordinary 
scenes  of  division  and  danger,  and  it  has  come  out  of  these  trials 
pure  and  bright  and  spotless.  No  practical  inconvenience  has  been 
felt  or  attempted  to  be  pointed  out  by  any  gentleman  in  the  present 
system,  during  this  long  period.  Is  it  then  wise,  or  just,  or  politic 
to  exchange  the  results  of  our  own  experience  for  any  theory,  how- 
ever plausible,  that  stands  opposed  to  that  experience,  for  a  theory 
that  'possibly  may  do  as  well  ? 

A  few  words  as  to  the  proposition  of  the  gentleman  from  Wor- 
cester for  representation  in  the  house.  It  seems  to  me — I  hope  the 
gentleman  will  pardon  the  expression — inconsistent  not  only  with 
his  own  doctrine  as  to  the  basis  of  population,  but  inconsistent  with 
the  reasoning,  by  which  he  endeavored  to  sustain  that  doctrine. 
The  gentleman  considers  population  as  the  only  just  basis  of  rep- 
resentation in  the  senate.  Why  then,  I  ask,  is  it  not  as  just  as  the 
basis  for  the  house  ?  Here  the  gentleman  deserts  his  favorite  prin- 
ciple, and  insists  on  representation  of  towns  as  corporations.  He 
alleges  that  in  this  way  the  system  of  checks  and  balances,  (which 
the  gentlemen  approves)  is  supported.  But  it  seems  to  me  that  it 
has  not  any  merit  as  a  check ;  for  the  aggregate  population  of  the 
county  will  express  generally  the  same  voice  as  the  aggregate  rep- 
resentatives of  the  towns.  The  gentleman  has  said  that  the  poor 
man  in  Berkshire  votes  only  for  two  senators,  while  the  poor  man 
in  Suffolk  votes  for  six.  Is  there  not  the  same  objection  against 
the  system  of  representation  now  existing  as  to  the  house,  and 
against  that  proposed  by  the  gentleman  himself?  A  voter  in  Chel- 
sea now  votes  for  but  one  representative,  while  his  neighbor,  a  voter 
in  Charlestown,  votes  for  six.  Upon  the  gentleman's  own  plan 
there  would  be  a  like  inequality.  He  presses  us  also  in  reference 
to  his  plan  of  representation  in  the  house,  with  the  argument,  that 
it  is  not  unequal  because  we  are  represented,  if  we  have  a  single 
representative  ;  and  he  says  he  distinguishes  between  the  right  to 
send  one  and  to  send  many  representatives.  The  former  is  vital  to 
a  free  government — the  latter  not.  One  representative  in  the  Brit- 
ish Parliament  would  have  probably  prevented  the  American  revolu- 
tion. Be  it  so.  But  if  the  doctrine  be  sound,  does  it  not  plainly 
apply  as  well  to  the  senate  as  the  house  ?  If  it  be  not  unequal  or 
unjust  in  the  house,  how  can  it  be  so  in  the  senate  ?  Is  not  Berk- 
shire with  its  two  senators,  and  Barnstable  with  its  one  senator,  and 
Worcester  with  its  four  senators,  upon  this  principle  just  as  fully 
represented  in  the  senate  as  Suffolk  with  its  six  senators?  The  ar- 
gument of  the  gentleman  may  therefore  be  thrown  back  upon  him- 
self. 

The  gentleman  from  Worcester  has  illustrated  his  views  by  a 
reference  to  the  structure  of  the  two  houses  under  the  constitution 
of  the  United  States;  and  he  conceives  the  senate  of  the  United 
States  as  analogous  to  his  system  of  representation  in  our  house — a 
representation  of  corporations.     It  certainly  bears  no  analogy  to  his 


292  MASSACHUSETTS     CONVENTION. 

basis  of  representation  for  the  senate.  I  take  it  that  the  senate  of 
the  United  States  is  a  representation  of  sovereignties,  co-ordinate 
and  coequal,  and  in  no  respect  like  our  system  either  of  the  house 
or  senate  ;  for  neither  towns  nor  districts  have  an  equal  representa- 
tion there,  for  the  reason  that  they  are  not  independent  sovereign- 
ties. But  when  we  come  to  the  house  of  representatives  of  the 
United  States,  which  is  founded  on  the  basis  of  population,  we  find 
that  it  is  accompanied  with  another  principle,  that  representation 
and  direct  taxation  shall  be  apportioned  according  to  population. 
Not  that  population  alone  shall  be  the  basis ;  but  that  they  who 
enjoy  the  right  shall  also  bear  the  burthen.  I  have  no  objection  to 
adopting  this  principle  here.  Let  Worcester  send  her  six  senators, 
and  Berkshire  three  ;  and  let  them  consent  also  to  bear  a  propor- 
tionable share  of  the  public  taxes ;  and  then,  and  then  only,  will 
there  be  a  well  founded  analogy  to  the  constitution  of  the  United 
States.  I  thank  the  gentleman  for  his  illustration — an  argument 
more  pertinent  for  my  purpose  could  not  have  been  found. 

I  beg  however  for  a  moment  to  ask  the  attention  of  the  commit- 
ee  to  the  gross  inequalities  of  the  plan  of  the  gentleman  from  Wor- 
cester respecting  the  house  of  representatives.  There  are  298 
towns  in  the  State,  each  of  which  is  to  send  one  representative. 
And  upon  this  plan  the  whole  number  of  representatives  will  be 
334.  There  are  but  24  towns,  which  would  be  entitled  to  send 
more  than  one  representative.  These  24  towns  with  a  population 
of  146,000  would  send  58  representatives,  or  only  one  upon  an 
average  for  every  2526  inhabitants,  while  the  remaining  274  towns 
with  a  population  of  313,000  would  send  274  representatives,  or 
one  for  every  1144  inhabitants.  I  lay  not  the  venue  here  or  there 
in  the  Commonwealth,  in  the  county  of  Worcester  or  the  county 
of  Essex ;  but  such  would  be  the  result  throughout  the  whole 
Commonwealth  taken  in  the  aggregate  of  its  population.  Salem 
would  send  one  representative  for  every  3130  inhabitants  and  Bos- 
ton one  for  every  4200  inhabitants,  while  every  town  but  the  24 
largest  would  send  one  for  every  1144  inhabitants!  What  then 
becomes  of  the  favorite  doctrine  of  the  basis  of  population  ?  I 
would  ask  the  gentleman  in  his  own  emphatic  language,  is  not  this 
system  unjust,  unequal  and  cruel  ?  If  it  be  equal,  it  is  so  by  some 
political  arithmetic,  which  I  have  never  learned  and  am  incapable 
of  comprehending. 

A  few  words  upon  the  plan  of  the  select  committee,  and  I  have 
done.  Sir,  I  am  not  entitled  to  any  of  the  merit,  if  there  be  any, 
in  that  plan.  My  own  was  to  preserve  the  present  basis  of  the 
senate,  not  because  I  placed  any  peculiar  stress  on  the  basis  of  val- 
uation ;  but  because  I  deemed  it  all-important  to  retain  some  element 
that  might  maintain  a  salutary  check  between  the  two  houses. 
My  own  plan  for  the  house  of  representatives  was  representation 
founded  on  the  basis  of  population  in  districts,  according  to  the 
system  proposed  by  the  gentleman  from  Northampton.  Finding 
that  this  plan  was  not  acceptable  to  a  majority  of  the  committee  I 


MASSACHUSETTS     CONVENTION.  293 

acquiesced  in  the  plan  reported  by  it.  I  have  learned  that  we  must 
not,  in  questions  of  government,  stand  upon  abstract  principles  ;  but 
must  content  ourselves  with  practicable  good.  I  do  not  pretend  to 
think,  nor  do  any  of  its  advocates  think,  that  the  system  of  the 
select  committee  is  perfect ;  but  it  will  cure  some  defects  in  our 
present  system  which  are  of  great  and  increasing  importance.  I 
have  always  viewed  the  representation  in  the  house  under  the  pres- 
ent constitution,  as  a  most  serious  evil,  and  alarming  to  the  future 
peace  and  happiness  of  the  State.  My  dread  has  never  been  of  the 
senate,  but  of  that  multitudinous  assembly,  which  has  been  seen 
within  these  walls,  and  may  again  be  seen  if  times  of  political  ex- 
citement should  occur.  The  more  numerous  the  body  the  greater 
the  danger  from  its  movements  in  times,  when  it  cannot  or  will 
not  deliberate.  I  came  here  therefore  willing  and  ready  to  make 
sacrifices  to  accomplish  an  essential  reduction  in  that  body.  It  was 
the  only  subject  relative  to  the  constitution  on  which  I  have  always 
had  a  decided  and  earnest  opinion.  It  was  my  fortune  for  some 
years  to  have  a  seat  in  our  house  of  representatives ;  and  for  a  short 
time  to  preside  over  its  sittings,  at  a  period  when  it  was  most 
numerous,  and  under  the  most  powerful  excitements.  I  am  sorry 
to  say  it,  but  such  is  my  opinion,  that  in  no  proper  sense  could  it 
be  called  a  deliberative  assembly.  From  the  excess  of  numbers 
deliberation  became  almost  impossible  ;  and  but  for  the  good  sense 
and  discretion  of  those  who  usually  led  in  the  debates,  it  would 
have  been  impracticable  to  have  transacted  business  with  anything 
like  accuracy  or  safety.  That  serious  public  mischiefs  did  not  arise 
from  the  necessary  hurry  and  difficulty  of  the  legislative  business 
is  to  be  accounted  for  only  from  the  mutual  forbearance  and  kind- 
ness, of  those  who  enjoyed  the  confidence  of  the  respective  parties. 
If  the  State  should  go  on  in  its  population  we  might  hereafter  have 
800  or  900  representatives  according  to  the  present  system ;  and  in 
times  of  public  discontent,  all  the  barriers  of  legislation  may  be 
broken  down  and  the  government  itself  be  subverted.  I  wish  most 
deeply  and  earnestly  to  preserve  to  my  native  State  a  deliberative  leg- 
islature, where  the  sound  judgment,  and  discretion,  and  sagacity  of 
its  best  citizens  may  be  felt  and  heard  and  understood  at  all  times 
and  under  all  circumstances.  I  should  feel  the  liberties  of  the  State 
secure,  if  this  point  were  once  fairly  gained.  I  would  yield  up  the 
little  privileges  of  my  own  town  and  of  any  others,  that  our  chil- 
dren may  enjoy  civil,  religious  and  political  liberty,  as  perfectly, 
nay  more  perfectly  than  their  fathers.  With  these  views  I  am 
ready  to  support  the  report  of  the  select  committee — not  in  part, 
but  as  a  whole — as  a  system — and  if  part  is  to  be  rejected  I  do  not 
feel  myself  bound  to  sustain  the  rest.  Indeed  upon  no  other  ground 
than  a  great  diminution  of  the  house  of  representatives  can  I  ever 
consent  to  pay  the  members  out  of  the  public  treasury.  For  this  is 
now  the  only  efficient  check  against  an  overwhelming  representa- 
tion. By  the  plan  of  the  select  committee  the  small  towns  are 
great  gainers — a  sacrifice  is  made  by  the  large  towns  and  by  them 


294  MASSACHUSETTS    CONVENTION. 

only.  They  will  bear  a  heavier  portion  of  the  pay  of  the  represen- 
tatives, and  they  will  have  a  less  proportionate  representation  than 
they  now  possess.  And  what  do  they  gain  in  return  ?  I  may  say 
nothing.  All  that  is  gained  is  public  gain,  a  really  deliberative 
legislature,  and  a  representation  in  the  senate,  which  is  in  fact  a 
popular  representation,  emanating  from  and  returning  to  the  people, 
but  so  constructed  that  it  operates  as  a  useful  check  upon  undue 
legislation  and  as  a  security  to  property. 

I  hope  that  this  system  will  be  adopted  by  a  large  majority,  be- 
cause it  can  scarcely  otherwise  receive  the  approbation  of  the  people 
— I  do  not  know  that  it  is  even  desirable  that  the  people  should,  nay,  I 
might  go  further,  and  say  that  the  people  ought  not  to  adopt  any 
amendment  which  comes  recommended  by  a  bare  majority  of  this 
Convention.  If  we  are  so  little  agreed  among  ourselves,  as  to  what 
will  be  for  the  future  public  good,  we  had  much  better  live  under 
the  present  constitution,  which  has  all  our  experience  in  its  favor. 
Is  any  gentleman  bold  enough  to  hazard  the  assertion,  that  any  new 
measure  we  may  adopt  can  be  more  successful  ?  I  beg  gentlemen 
to  consider  too  what  will  be  the  effect  if  the  amendments  we  now 
propose  should  be  rejected  by  the  people,  having  passed  by  a  scanty 
majority.  We  shall  then  revert  to  the  old  constitution — and  new 
parties,  embittered  by  new  feuds,  or  elated  by  victory,  will  be  formed 
in  the  State  and  distinguished  as  constitutionalists  and  anti-consti- 
tutionalists ;  and  thus  new  discontents  and  struggles  for  a  new  con- 
vention will  agitate  the  Commonwealth.  The  revival  of  party  ani- 
mosities in  any  shape,  is  mostly  to  be  deprecated.  Who  does  not 
recollect  with  regret  the  violence  with  which  party  spirit  in  times 
past  raged  in  this  State,  breaking  asunder  the  ties  of  friendship  and 
consanguinity  ?  I  was  myself  called  upon  to  take  an  active  part  in 
the  public  scenes  of  those  days.  I  do  not  regret  the  course  which  my 
judgment  then  led  me  to  adopt  ;  but  I  never  can  recollect,  without 
the  most  profound  melancholy,  how  often  I  have  been  compelled  to 
meet,  I  will  not  say  the  evil  but  averted  eyes,  and  the  hostile  oppo- 
position  of  men  with  whom,  under  other  circumstances,  I  should 
have  rejoiced  to  have  met  in  the  warmth  of  friendship.  If  new  par- 
ties are  to  arise,  new  animosities  will  grow  up,  and  stimulate  new 
resentments.  To  the  aged  in  this  Convention,  who  now  bow  down 
under  the  weight  of  years,  this  can,  of  course,  be  of  but  little  con- 
sequence— for  they  must  soon  pass  into  the  tranquillity  of  the  tomb  ; 
— to  those  of  middle  life  it  will  not  be  of  great  importance,  for  they 
are  far  on  their  way  to  their  final  repose  ;  they  have  little  to  hope  of 
future  eminence,  and  are  fast  approaching  the  period  when  the  things 
of  this  world  will  fade  away.  But  we  have  youth,  who  are  just 
springing  into  life — we  have  children  whom  we  love — and  families, 
in  whose  welfare  we  feel  the  deepest  interest.  In  the  name  of  hea- 
ven, let  us  not  leave  to  them  the  bitter  inheritance  of  our  contentions. 
Let  us  not  transmit  to  them  enmities  which  may  sadden  the  whole 
of  their  lives.  Let  us  not — like  him  of  old,  blind  and  smitten  of 
his  strength — in  our  anger  seize  upon  the  pillars  of  the  constitution, 


MASSACHUSETTS    CONVENTION.  295 

that  we  and  our  enemies  may  perish  in  their  downfall.  I  would 
rather  approach  the  altar  of  the  constitution  and  pay  my  devotions 
there,  and  if  our  liberties  must  be  destroyed,  I,  for  one,  would  be 
ready  to  perish  there  in  defending  them. 

Mr.  Childs  moved  that  the  committee  should  rise  and  report  pro- 
gress.    The  motion  was  negatived. 

Mr.  Childs  then  rose  to  address  the  committee  in  favor  of  the  res- 
olutions ;  but  it  being  intimated  that  he  was  indisposed,  he  gave  way 
to  a  renewal  of  the  motion  that  the  committee  should  rise. 

The  committee  rose,  reported  progress  and  had  leave  to  sit  again. 

And  the  House  adjourned. 


Friday,  December  15. 

The  House  met  at  9  o'clock,  and  attended  prayers  offered  by  the 
Rev.  Mr.  Jenks  ;  after  which  the  journal  of  yesterday  was  read. 

Apportionment  of  the  Senate. — On  motion  of  Mr.  Webster,  the 
House  went  into  committee  of  the  whole,  on  the  unfinished  busi- 
ness of  yesterday,  Mr.  Q,uincy  in  the  chair. 

The  question  before  the  committee  was  upon  Mr.  Dearborn's  res- 
olution for  dividing  the  Commonwealth  into  districts  for  the  choice 
of  senators  according  to  population. 

Mr.  Childs  of  Pittsfield  said  that  for  the  indulgence  shown  to  him 
yesterday  by  the  committee,  he  felt  very  grateful,  and  in  return,  he 
should  trespass  but  a  short  time  on  their  patience.  Had  the  subject 
been  treated  in  the  manner  in  which  he  viewed  it,  he  should  not 
have  risen.  He  had  no  expectation  of  distinguishing  himself  as  a 
public  speaker,  his  course  of  life  was  in  a  different  direction  ;  but  he 
felt  it  to  be  his  duty  to  his  constituents  and  to  himself,  not  to  give  a 
silent  vote  on  the  present  occasion.  Mr.  C.  first  considered  the  ob- 
ject and  design  and  nature  of  governments,  and  said  that  though  the 
subject  had  been  profoundly  discussed,  the  distinction  between  gov- 
ernments at  different  times  had  not  been  well  kept  up.  Govern- 
ments should  conform  to  the  state  of  society  in  any  people.  He  took 
a  view  of  the  different  kinds  of  governments  in  Europe,  and  the  in- 
stitutions and  opinions  which  had  grown  out  of  them,  and  inferred 
that  all  calculations  made  in  reference  to  them  were  inapplicable  to 
this  country.  He  then  came  to  our  own  government.  Our  fore- 
fathers came  over  here,  a  band  of  brothers,  with  equal  rights — a 
pure  democracy,  with  no  disposition  to  set  one  class  of  men  above 
another — all  engaged  in  the  same  noble  cause,  to  establish  liberty  of 
conscience  and  a  free  government.  Our  government  was  founded 
on  intelligence  and  morality.  Never  in  any  country  was  so  fair  an 
experiment  made,  to  test  the  power  of  the  people  to  govern  them- 
selves. What  was  necessary  to  make  this  experiment  successful  ? 
To  make  the  division  which  now  exists,  of  the  executive,  legislative 
and  judicial  departments  ;  thus  forming  a  beautiful  symmetry  never 
before  known  in  any  government.     They  also  divided  the  legisla- 


296  MASSACHUSETTS    CONVENTION. 

tive  departments  into  two  assemblies,  not  to  establish  an  aristocracy, 
but,  as  the  gentleman  from  Boston  had  well  observed,  to  constitute 
a  senate  to  reconsider  what  might  have  passed  through  the  other 
house  too  hastily.  Not  that  he  would  have  them  constituted  exactly 
alike.  He  knew  no  better  system  than  the  present  of  having  one 
branch  elected  from  large  districts,  and  the  other  from  small  ones. 
Experiment  had  shown  that  in  this  manner  men  had  been  elected 
well  qualified  to  fill  the  different  offices  with  dignity.  Mr.  C.  then  ' 
came  to  the  principle  of  apportionment  of  the  senate  according  to 
valuation.  He  asked,  was  the  senate  the  rich  man's  citadel  ?  The 
present  principle  had  been  in  operation  for  forty  years,  and  what  was 
the  practical  operation  ?  It  turns  out  that  it  is  nothing  more,  than  that 
the  whole  State  has  been  represented  in  the  same  manner  it  would 
have  been  on  the  principle  of  population,  except  that  the  county  of 
Suffolk  has  had  four  more  senators  than  it  would  have  had  on  that 
principle.  He  appealed  to  the  good  sense  and  candor  of  the  com- 
mittee whether  this  was  any  check,  if  a  check  was  wanted.  Was 
giving  an  undue  representation  to  one  section  of  the  Commonwealth 
a  proper  check  ?  No — unless  it  could  be  shown  that  Boston  could, 
and  would  elect  better  men,  than  would  have  been  elected  in  any 
other  part  of  the  State.  This  went  to  remove  one  of  the  fundamen- 
tal principles  of  the  government,  that  a  majority  shall  rule.  The 
object  of  the  present  resolution  was  nothing  but  to  reduce  the  num- 
ber of  senators  from  Suffolk  to  two  or  at  least  to  three.  It  shows 
only  that  Suffolk  chooses  four  more  than  any  other  county  of  equal 
population.  It  was  incumbent  on  the  opposers  of  this  resolution  to 
show  that  the  vote  of  an  individual  in  one  county  should  have  three 
times  the  value  of  a  vote  in  another.  He  acquiesced  in  all  the 
eulogy  on  the  citizens  of  Boston  which  had  been  made  by  the  gen- 
tleman from  Salem  (Mr.  Story.)  But  it  was  not  to  be  supposed 
that  all  the  citizens  would  have  the  same  intelligence  and  virtue 
which  a  large  part  of  them  have.  The  senators  were  not  chosen  by 
this  intelligent  and  virtuous  class  alone,  but  by  the  multitude,  as  in 
other  counties.  The  great  argument  had  been,  that  wealth  ought 
to  be  represented.  He  could  see  nothing  in  wealth  to  entitle  it  to  a 
representation,  and  its  natural  influence  showed  that  it  did  not  need  it. 
The  fluctuation  of  wealth,  so  beautifully  described  yesterday  by  the 
gentleman  from  Salem,  (Mr.  Story)  was  a  sufficient  reason  why  it 
should  not  be  specifically  represented.  It  was  here  today,  and  he 
wished  to  God  it  might  be  in  Berkshire  tomorrow.  The  principle 
stated  by  the  gentleman  from  Worcester,  (Mr.  Lincoln)  was  correct, 
though  his  example  of  the  town  of  Hull  might  not  precisely  meet  the 
principle.  If  foreigners  put  a  large  amount  of  property  into  any  one 
district,  it  would  give  a  right  to  an  additional  number  of  senators. 
It  was  perfectly  proper  that  taxation  and  representation  should  go 
together,  but  not  that  half  the  representation  should  be  on  wealth  and 
half  on  population.  He  did  not  believe  that  if  we  had  had  one  rep- 
resentative in  parliament,  the  revolution  would  have  been  stayed  ; 
if  we  had  had  a  representation  in  proportion  to  our  population,  we 


MASSACHUSETTS    CONVENTION.  297 

might  then  presume  it  would  never  have  taken  place.     When  we 
establish  a  government  for  ourselves,  and  all  people,  who  are  taxed, 
are  represented  in  proportion  to  their  numbers,  representation  and 
taxation  do  go  hand  in  hand.     Was  not  property  in  this  way  equally 
well  protected  as  it  would  be  by  the  rich,  if  you  should  introduce 
an  aristocracy  ?     Property  was  equally  dear  to  the  poor  man  as  to 
the  rich.     It  was  a  subject  of  wonder,  that  our  constitution,  under 
the  circumstances  in  which  it  was  made,  was  so  beautiful  a  fabric  as 
it  is ;  not  that    it    had  a  single  defect.       It  was  but  an  experi- 
ment.    If  we  took  away  this  defect,  which  was  as  clear  as  the  sun 
in  the  firmament,  would  the  experiment  be  less   successful  ?     The 
gentleman  from  Quincy  justifies  the  principle   in  connection  with 
the  house  of  representatives,  on  the  ground  of  its  being  a  compro- 
mise.    He  was  of  a  different  opinion.     It  was  not  in  the   power  of 
any  delegate  to  give  up  any  rights  of  his  town.    Make  a  just  system, 
and  no  compromise  would  be  necessary.     The  house  of  representa- 
tives stood  on  its  own  bottom.     He  was  not  bound  to  go  into  an  ex- 
planation now,  of  the  course  he  should  be  in  favor  of  in  respect  to 
the  house  of  representatives.     In  that  branch  there  had  been  a  pop- 
ular representation  hitherto,  and  probably  would  be.     In   no   other 
state  except  New  Hampshire,  was  this  principle  of  valuation  recog- 
nized.    There  are  checks — different  modes   of  election — different 
qualifications  of  electors  and  elected — different  duration   in  office. 
He  should  agree  that  the  senators  be  chosen  for  two,  three  or  four 
years,  or  to  the  distinctions  above  mentioned,  if  necessary,  and  then 
we  should  have  a  check  in  reality.     The  county  of  Suffolk  only 
was  now  represented,  on  principles  not  consistent  with  a  free  gov- 
ernment.    Gentlemen  on  all  sides  admitted  that  if  a  new  constitu- 
tion was  to  be  formed,  this  principle  should  be  left  out.     He  could 
not  then  see  the  consistency  of  retaining  it.     And  why  limit  the 
principle  ?     He  had  heard  no  answer.     If  the  principle  was  correct, 
it  could  be  carried  through.     He  was  not  contending  for  these  four 
senators  to  be  apportioned  among  other  counties ;  he  was  willing 
they  should  be  struck  off",  and  the  senate  be  reduced  to  thirty-two. 
One  gentleman  had  endeavored  to  show  that  property  could  be  rep- 
resented ;  that  dollars  in  Boston  could  be  set  off  against  dollars  in 
Berkshire.     This  was  meeting  the  question  fairly,  and  it  showed  the 
folly  of  the  principle.     They  had  not  dollars  to   oppose,  but  they 
had  rights  as  dear  as  property.     He  was  not  present  when  the  reso- 
lution was  proposed,  and  adopted  by  a  large  majority  ;  but  he  thought 
the  vote  would  not  be  reversed.     Gentlemen  had  thought  of  the 
subject  before  they  came  into  the  House,  and  he  had  seen  nothing 
to  shake  their  opinion,  that  this  was  the  rotten  part  of  the  constitu- 
tion, and  would  be  struck  off.     Strike  it  off,  and  they  might  go  on 
prosperously,  and  transmit  improved  to  posterity,  the  privileges  they 
had  enjoyed. 

Mr.  Dutton  of  Boston  said  he  did  not  rise  to  enter  into  the  gen- 
eral argument.     He  did  not  propose  to  follow  gentlemen,  in  the  dis- 
cussion of  the  resolution  as  involving  an  essential  principle  of  civil 
38 


298  MASSACHUSETTS    CONVENTION. 

government.     After  a  debate  that  had  brought  forth  so  much  ability, 
it  did  not  belong  to  him,  but  to  others,  to  pursue  the  general  argu- 
ment.    His  only  object  was  to  extract  one  proposition  from  the  pres- 
ent state  of  the  debate,  and  to  follow  it  in  some  of  its  necessary 
consequences.     The  proposition  was,  that  if  the  senate  was  to  be 
formed  upon  numbers,  and  no  alteration  was  to  be  made  in  the  mode 
of  assessing  taxes,  every  plan  which  had  been  introduced  would 
operate  unequally  and  unjustly  towards  the  county  of  Suffolk.    He 
was  sorry  to  mention  the  name  of  any  county,  but  he  believed  if 
any  other  county  stood  in  the  same  predicament  that  Suffolk  did,  it 
would  find  abler  and  more  zealous  defenders  than  he  was.     He 
trusted,  however,  that  the  few  remarks  he  had  to  make,  would  show, 
that  if  this  county  was  to  be  oppressed  and  injured,  the  State  would 
suffer  in  the  same  proportion.     By  the  report  of  the  special  com- 
mittee, six  senators  are  allotted  to  Suffolk  ;  but  if  the  resolution  pre- 
vails, this  number  will  be  reduced  to  two,  or  at  most  three.     The 
six  senators  are  now  given  by  the  constitution  upon  the  principle  of 
taxation,  and  the  principle  of  the  resolution  is  to  be  applied  to  reduce 
the  number  by  one  half,  but  not  to  reduce  the  taxation.     The  report 
of  the  special  committee  presents  a  system  in  all  its  parts  ;  it  is  a  com- 
promise of  rights  and  interests ;  and  if  any   of  its  parts  are  taken 
away,  it  will  operate  unequally.     If  the  principle  of  the   senate  is 
taken  away,  the  formation  of  the  house  of  representatives  will  be  un- 
just.    As  the  report  stands,  taken  as  a  whole,  there  is  a  great  con- 
cession, in  the  reduction  of  representation  in  the  house  ;  and  if  the 
number  of  senators  is  to  be  reduced,  we  lose  that  for  which  the  con- 
cession is  made,  in  addition  to  the  inequality  arising  from  the  mode 
of  assessing  taxes.     The  scheme  of  the   gentleman  from  Roxbury, 
though  more   consistent  in  itself,  presents  the  same   difficulty  and 
works  the  same  injustice.    The  plan  of  the  gentleman  from  Worcester, 
would  operate  more  unjustly  than  any  other  yet  proposed.     It  would 
enable  four  towns  in  the  county  of  Worcester,  with  three  thousand 
inhabitants  each,  to  send  as  many  representatives  as  the  whole  county 
of  Suffolk.    Taken  in  connection  with  the  present  resolution,  it  would 
reduce  our  representatives  to  eight,  and  our  senators  to  three,  and  yet 
the  whole  burden  of  taxation  would  remain.     He  took  the  propo- 
sition then  to  be  true,  and  would   proceed  to  offer  a  few  remarks  to 
the  gentlemen  from  the  country  upon  its  consequences.     He  would 
put  it  to  them,  if  they  had  the  power  to  carry  this  resolution  and 
the  disposition  to  use  it,  that  though  it  might  be  excellent  to  have  a 
giant's  strength,  it  would  be  tyrannous  to  use  it  like  a  giant.    Could 
it  be  supposed  that  the  county  of  Suffolk  would  submit  to  so  griev- 
ous a  wrong,  without  a  murmur  ?     Could  it  be  thought  desirable  to 
honorable  and  high  minded  gentlemen,  to  plant  a  sentiment  of  in- 
justice in  the  breasts  of  forty  thousand  people,  which  would  descend 
from  one  generation  to  another  with  increasing  aggravation  ?  for  it 
ought  to  be  remembered  that  nothing  sunk  so  deep,  or  lasted  so  long, 
as  the  feeling  of  unmerited  injury.     Every  gentleman  in  the  coun- 
try had  some  connection  with  the  town,  of  business,  or  friendly  in- 


MASSACHUSETTS    CONVENTION.  299 

tercourse.  He  deprecated  a  measure,  which  would  create  or  cherish 
any  distinction  between  the  agricultural  and  commercial  parts  of  the 
State.  He  considered  it  as  a  social  injury,  a  mischief,  which  would 
propagate  itself  till  it  should  be  felt  in  every  corner  of  the  State. 
But  this  was  not  all.  He  asked  gentlemen  to  consider  whether  the 
prosperity  of  the  commercial  towns  was  not  their  own  prosperity. 
He  contended  that  the  interests  of  agriculture  and  commerce  were 
indissolubly  connected.  Who  were  the  merchants  ?  the  agents  and 
factors  of  the  farmers ;  the  men  who  brought  to  them  what  they 
wanted  to  buy,  and  took  from  them  what  they  wanted  to  sell.  The 
more  capital  those  merchants  had,  and  the  greater  their  number,  higher 
prices,  and  more  markets  would  be  found  for  the  surplus  produce  of 
the  farmers.  It  was  therefore  the  interest  of  the  farmer,  that  the 
commercial  towns  should  increase  in  wealth  and  numbers,  for  it  was 
the  prosperity  of  the  whole  State.  No  maxim  in  political  science  was 
more  true,  and  it  was  not  too  much  to  say,  that  it  was  commerce 
that  made  rocks  and  sands  fertile.  Besides,  gentlemen  would  re- 
member that  we  had  no  great  staple  ;  that  foreign  ships  did  not  come 
here  for  cargoes  of  cotton,  or  rice,  or  tobacco,  or  flour ;  but  on  the 
other  hand,  so  various  were  the  articles  destined  to  a  distant  market, 
so  combined  with  manufactures,  and  suited  to  the  wants  of  so  many 
portions  of  this  country,  as  well  as  of  others,  that  it  required  num- 
bers of  these  agents  to  transact  the  business.  The  difference  in  the 
business  of  merchants,  is  as  great  almost  as  it  is  between  different 
professions.  This  is  the  result  of  commercial  prosperity.  Will  you 
then  lay  unequal  burthens  upon  the  commercial  towns  ?  Will  you 
give  them  less  encouragement,  or  less  protection  for  their  rights,  than 
you  allow  to  other  members  of  the  State  ?  Will  you  drive  them  to 
the  other  parts  of  the  country  where  the  rights  of  property  will  be 
better  protected,  and  enterprise  better  rewarded  ?  He  asked  gentle- 
men also  to  consider  if  the  commercial  towns  were  to  be  oppressed  ; 
if  there  were  to  be  a  dissocial,  hostile  spirit  prevailing ;  if  the  ties 
which  now  bind  us  together  are  to  be  weakened  or  severed,  who 
will  suffer  most,  the  merchants  or  the  farmers  ?  Examples  were  at 
hand.  In  ancient  times  Tyre  and  Carthage  grew  rich  and  powerful 
by  commerce  ;  so  powerful  did  Carthage  become,  that  she  long  main- 
tained a  struggle  with  Rome  for  the  world's  empire — though  sur- 
rounded by  deserts.  He  deprecated  those  evils ;  he  put  it  to  the  at- 
tachment of  gentlemen  to  the  State  of  Massachusetts  to  say  if  it  was 
not  most  desirable  to  prevent  them.  He  could  not  believe  that 
honorable  gentlemen  would  be,  or  could  be  influenced  by  jealousy 
or  prejudice,  to  do  this  great  wrong.  Neither  could  he  think  that 
they  could  be  influenced  by  any  considerations  of  party  politics. 
The  paltry  distinctions  of  party  will  soon  pass  away  ;  and  the  pas- 
sions and  interests  of  the  day  will  soon  be  at  rest ;  but  the  principles 
now  to  be  decided  will  remain.  He  asked  gentlemen  to  pause  before 
they  took  the  last  step,  before  they  inflicted  an  injury  which  might 
outlive  the  constitution  they  were  revising. 

Mr.  Lincoln  said  the  distinguished  attention  with  which  he  was 


300  MASSACHUSETTS     CONVENTION. 

honored  yesterday,  demanded  the  acknowledgment  of  a  reply.     He 
should  have  been  contented  that  the  question  should  be  decided 
without  any  further  remarks  from  him — but  the  range  that  the  dis- 
cussion had  taken,  and  the  misapprehension  of  his  remarks,  forbad 
that  he  should  be  silent.     He  was  besides  the  agent  of  those  who 
would  only  be  heard  through  him.     The  proposition  before  the 
House,  was  a  simple  and  independent  one — that  the  senate  should 
be  represented  on  the  basis  of  population.    It  had  been  admitted  that 
this  was  a  proper  basis  for  one  branch,  and  he  asked  why  it  should 
necessarily  be  in  the  house  of  representatives  instead  of  the  senate  ? 
He  insisted  that  this  basis  was  proper  for  the  senate.     It  was  the 
most  natural  and  obvious  principle.     If  you  assume  the  proportion 
of  wealth,  it  was  not  a  representation  of  property,  but  of  the  people. 
And  to   adopt   the   rule   of  representing    the   people   according  to 
wealth,  conferred  a  power  that  was  dangerous.     The  principle  did 
not  give  to  the  rich  man  an  influence  according  to  his  property,  but 
gave  the  poor  man  who  sat  at  the  gate  of  the  rich,  the  same  influ- 
ence.    Take  the  money  owned  in  a  rich  district  and  carry  it  to  a 
poor  one,  without  transferring  the  owners,  and  the  right  of  repre- 
sentation was  transferred,  and  given  to  the  poor  men  there.     It  was 
the  poor  men,  who  were  placed  by  the  side  of  the  property,  wher- 
ever it  was,  that  he  feared — it  was  not  the  influence  of  the  rich,  but 
the   influence  which  they  conferred  on  the  poor.     The  basis  of 
wealth  is  transient.     If  property  is  mine  today,  it  may  be  another's 
tomorrow.     A  representation  of  the  people,  predicated  on  this  phan- 
tom, would  seem  idle.     Wealth  consists  not  in  money,  but  in  the 
productive  labor  of  the  country,  in  the  soil  and  its  produce.     Found 
the  representation  on  this   substantial  property,  which  cannot  be 
affected  by  accident,  and  it  will  have  some  permanent  basis.     But 
it  is  said  the  basis  is  not  wealth,  but  taxation — this  is  founded  on 
valuation.     He  contended  that  the  basis  was  not  taxation.     Did  the 
people  have  an  influence  in  proportion  to  the  taxes  which  they 
paid  ?     There  was  nothing  in  the  constitution  which  predicated  the 
representation  in  the  senate  on  taxation.     If  the  Legislature  should 
impose  all  the  taxes  of  the  State  on  polls,  the  representation  would 
not  be  on  this  taxation — it  would  be  on  the  valuation.     There  is 
now  a  poll  tax  paid,  and  the  basis  is  not  founded  on  this,  but  on 
the  valuation  of  property.     He  said  he  would  take  this  occasion  to 
thank  gentlemen  for  their  magnanimity  in  relation  to  his  proposi- 
tion.    It  had  been  condemned  without  being  understood.     He  had 
had  no  opportunity  of  explaining  it.     What  was  it  ?     That  there 
should  be  a  representation  for  every  corporate  town,  and  that  the 
large  towns  should  have  an  additional  representation  in  an  increas- 
ing  ratio  which  should  compensate  for   fractions  in  the   smaller 
toAvns.     This  system  was  justified  by  the  example  of  our  ancestors 
in  adopting  the   same   system,   and  continuing  it  in  practice  for 
many  years,  with  general  approbation.     The  corporate  right  he  did 
not  consider  strictly  a  vested  legal  right,  but  what  he  called  a  politi- 
cal right.  What  was  the  foundation  of  this  right  ?   In  1636  a  law  was 


MASSACHUSETTS    CONVENTION.  301 

passed,  granting  to  the  freemen  of  every  town  the  right  to  choose  a 
representative  in  the  General  Court.  In  this  law  there  was  a  re- 
striction of  the  right  of  any  town  to  two  representatives.  In  1692 
a  provincial  law  was  passed,  which  allowed  towns  of  from  thirty  to 
forty  freeholders,  to  choose  one  representative — every  town  which 
had  one  hundred  and  twenty,  to  choose  two,  and  the  town  of  Bos- 
ton to  choose  four.  In  1775  a  law  was  passed  recognizing  the 
chartered  rights  of  the  towns  to  choose  representatives.  In  1780 
the  people  were  so  jealous  of  the  corporate  rights  of  the  towns,  that 
in  forming  the  constitution,  they  expressly  recognized  the  right  of 
every  corporate  town — even  the  town  of  Hull — to  choose  a  repre- 
sentative— though  no  town  afterwards  incorporated,  was  to  have  a 
right  unless  it  had  one  hundred  and  fifty  ratable  polls.  Why  was 
this  reservation  made,  unless  it  was  in  respect  to  the  corporate  right 
of  the  towns  ?  Further,  under  the  constitution  it  has  been  the 
practice  of  the  Legislature  to  incorporate  towns  with  the  right,  if 
they  have  more  than  one  hundred  and  fifty  ratable  polls,  to  elect  a 
representative  ;  and  connected  with  this  right  are  corporate  duties. 
Would  it  be  just  and  equal  to  take  away  the  right  of  representation, 
and  continue  upon  them  the  imposition  of  the  duties  which  result 
from  their  incorporation — the  duty  of  supporting  schools — high- 
ways— poor,  &c.  ?  He  thought  not,  though  he  might  be  singular 
in  his  opinion.  He  proceeded  to  consider  the  other  part  of  his 
proposition — the  creation  of  an  ascending  series,  as  the  basis  of  rep- 
resentation in  larger  towns.  He  had  proposed  the  plan  with  great 
modesty,  and  had  expressly  proposed  the  numbers  for  considera- 
tion. It  had  been  his  intention  to  propose  another  resolution, 
which  should  operate  as  a  further  restriction,  that  the  representa- 
tives should  be  paid  by  their  towns.  He  had  stated  that  if  these 
numbers  were  too  high,  lower  numbers  might  be  taken.  Was  it 
fair  and  candid,  then,  to  take  the  numbers  thus  proposed,  as  his 
plan,  which  was  to  be  adopted  without  alteration  ?  It  was  not  his 
plan — he  had  at  that  time  no  plan — he  was  willing  to  be  governed 
in  his  opinion  relating  to  the  house,  by  the  determination  that 
should  be  made  in  relation  to  the  senate.  He  proceeded  to  make 
some  calculations  to  show  that  the  inequality  was  not  so  great  as 
had  been  represented,  and  that,  if  this  plan  were  pursued,  there 
might  be  towns  of  middling  size  that  would  not  be  more  fully  rep- 
resented than  Boston.  The  representatives  from  the  town  of  Bos- 
ton, would  all  count  on  one  side  ;  but  take  double,  three  times,  or 
ten  times  the  number  from  different  corporations,  and  they  might 
be  so  divided  as  to  neutralize  one  another.  He  admitted  that  the 
town  and  country  had  but  one  great  interest,  and  that  considering 
the  influence  of  the  people  of  Boston  in  the  Legislature,  they  had 
deported  themselves  with  great  moderation.  Their  power  had  al- 
ways been  exercised  with  a  due  regard  to  the  rights  of  the  people. 
There  was  no  people  in  whom  he  had  more  confidence,  and  if  the 
same  amount  of  population  were  concentrated  in  any  other  town, 
he  should  feel  a  great  deal  less.     It  was  so  much  easier  to  find 


302  MASSACHUSETTS    CONVENTION. 

fault,  than  to  commend,  he  hoped  he  should  be  indulged  in  finding 
some  fault  with  the  propositions  of  the  committee.  He  would  first 
notice  the  statement  of  the  gentleman  from  Billerica,  that  in  the 
select  committee,  he  (Mr.  L. )  had  agreed  to  none  of  the  proposi- 
tions which  had  been  made.  He  said,  that  of  the  eighteen  resolu- 
tions, he  had  voted  against  five,  and  in  favor  of  all  the  rest. 

Mr.  Locke  rose  to  explain.  He  said,  that  of  the  original  propo- 
sitions submitted  to  the  committee,  he  was  not  aware  that  the  gen- 
tleman from  Worcester  had  approved  of  any  one.  And  he  believed 
he  was  correct  in  saying  that  he  opposed  them  all.  When  the  prop- 
ositions were  reduced  to  form,  he  did  not  mean  to  deny  that  he 
voted  in  favor  of  some  of  the  particular  resolutions. 

Mr.  Lincoln  said  that  they  were  at  issue  on  a  point  of  fact,  but 
it  was  not  the  place  to  put  himself  on  the  country.  He  objected  in 
committee  to  five  of  the  resolutions — to  making  the  valuation  the 
basis  of  representation  in  the  senate  ;  to  classing  the  small  towns ; 
and  he  objected  still.  He  proceeded  to  consider  the  plan  of  the 
committee.  The  senate  was  to  be  apportioned  according  to  the  val- 
uation, which  gives  to  the  counties  of  Suffolk  and  Essex  one-third 
of  the  representation,  though  they  are  but  one-fifth  of  the  popula- 
tion of  the  State.  Suffolk  with  a  population  of  33,000,  was  to  have 
six  senators,  and  Hampshire  with  a  population  of  more  than  70,000, 
would  have  only  four.  Was  this  equal  ?  What  was  to  counterbal- 
ance this  inequality  ?  A  house  of  representatives  on  a  mixed  prin- 
ciple, by  which  one  hundred  and  forty  towns  would  be  virtually 
disfranchised.  It  was  not  merely  an  inequality  between  the  towns, 
but  between  the  citizens  of  neighboring  towns.  An  inhabitant  of 
one  town  might  vote  for  a  representative  every  year,  but  in  the 
neighboring  town  only  every  other  year.  It  was  a  violation  of  cor- 
porate rights,  and  an  outrage  upon  the  equal  rights  of  the  people. 
He  asked  was  it  not  so  ?  More  than  one  hundred  and  forty  towns 
were  to  be  classed  and  enjoy  the  privilege  of  sending  a  representa- 
tive but  once  in  two  years,  while  the  citizens  of  the  large  towns 
would  exercise  the  same  privilege  every  year.  Was  this  equal  ? 
Men  born  in  one  town  would  indeed  be  equal  with  each  other,  but 
they  would  not  be  equal  with  those  born  in  other  towns.  He  de- 
manded the  authority  by  which  this  inequality  was  to  be  produced. 
The  people  were  not  familiar  with  any  such  principle,  and  would 
not  be  easily  reconciled  to  it.  A  further  inequality  would  ensue. 
There  were  to  be  86,000  people,  making  nearly  a  fifth  part  of  our 
population,  wholly  unrepresented  every  year  in  the  Legislature  of 
the  Commonwealth.  The  system  of  the  committee  would  give  the 
towns  containing  1200  inhabitants,  and  to  those  containing 
not  quite  3600,  the  same  right,  the  same  proportion  of  represen- 
tation. Was  this  just  and  equal  ?  If  it  was,  it  became  so  by  a 
political  arithmetic,  in  which  he  had  not  been  initiated.  What 
would  be  the  operation  of  the  plan,  in  relation  to  the  middling 
towns  ?  He  felt  no  squeamishness  about  alluding  to  the  county  or 
town  in  which  he  lived.     In  respect  to  the  former,  he  was  entirely 


MASSACHUSETTS    CONVENTION.  303 

disinterested  ;  for  the  county  of  Worcester  would  be  entitled  to  five 
senators,  whether  the  apportionment  was  on  valuation,  or  on  popu- 
lation.    But  the  town  of  Worcester  would  be  entitled  to  but  one 
representative,  and  by  the  proportion  of  valuation,  would  pay  for 
five.     That  town,  with  3000  inhabitants,  would  have  the  same  rep- 
resentation as  a  small  town  by  the  side  of  it  with  1200,  and  would 
yet  pay  ten  times  as  much.     Was  this  equal  ?     He  hoped  gentle- 
men would  not  violate  their  own  principle,  that  taxation  and  repre- 
sentation should  go  hand  in  hand.     And  what  was  the  equivalent 
which  the  small  towns  were  to  receive  for  giving  up  their  privi- 
leges ?     They  were  to  get  a  little  money — to  get  a  mess  of  pottage 
for  a  birth-right.     They  were  called  upon  to  barter  their  privileges, 
rather  than  pay  the  cost  of  representation.     The  small  towns  would 
not  thank  gentlemen  for  the  compliment.     They  would  claim  their 
right,  though  they  might  not  use  it  when  it  was  unnecessary ;  but 
cost  what  it  would,  they  would  exercise  the  right  when  it  became 
important.     Were  gentlemen  here  willing  to  go  home  to  their  con- 
stituents, and  tell  them  they  had  bartered  the  right  by  which  they 
held  their  seats  ?     Let  them  take  the  responsibility  on  themselves  ; 
he  washed  his  hands  of  it.     The  gentleman  from  Salem  deprecated 
the  number,  which,  under  the  present  constitution,  might  fill  the 
house  of  representatives,  and  alluded  to  times  in  which  he  had  wit- 
nessed great  inconveniences  arising  from  this  source  ; — times  when 
the  political  friends  of  that  gentleman  did  many  things,  in  which 
he  hoped,  and  after  what  had  been  said,  he  was  bound  in  honor  to 
believe,  that  gentleman  did  not  participate.     He,  too,  (Mr.  L.)  had 
been  a  representative  when  there  was  a  full  house.     It  was  in  a  pe- 
riod of  great  alarm,  when  the  country  was  at  war ;  and  he  believeo! 
that  the  great  numbers  of  the  house  had  been,  at  that  time,  the 
means  by  which  the  country  had  been  preserved.     It  was  numbers 
in  that  house,  that  kept  the  people  quiet — numbers,  which  could 
not  be  assailed  by  corruption — which  could  not  be  overawed  by 
threats.     Mr.   L.   said    there   was  another   feature   of  the  system, 
which  he  looked  upon  as  a  preparation  of  chains  and  fetters  for  the 
people.     He  alluded  to  the  amendatory  provisions,  which  had  been 
recommended  by  a  select  committee  and  agreed  to  in  committee  of 
the  whole.     This  provision,  though  reported  by  a  different  commit- 
tee, was  to  be  viewed  in  connection  with  the  resolutions  he  was 
examining,  and  was  to  be  taken  as  a  part  of  the  system.     What,  he 
demanded,  was  the  value  of  the  amendatory  principle  ?     One-third 
of  the  senate  would  come  from  the  counties  of  Suffolk  and  Essex. 
Suppose  Suffolk  and    Essex  should  lose  in  their  population,  and 
400,000    inhabitants,  in   the  other   parts    of  the    Commonwealth, 
should  propose  a  reform  in  the  senate  on  this  account  ?    How  was  it 
to  be  effected  ?    Six  senators  would  come  from  Suffolk  and  six  from 
Essex ;  and  if  a  gentleman  from  the  country  happened  to  be  in  the 
chair  of  the  senate,  these  two  counties  could  successfully  resist  any 
amendment  that  should  be  proposed.     This  was  a  system  with  a 
vengeance,  a  system  by  which  an  amendment  might,  year  after 


304  MASSACHUSETTS    CONVENTION. 

year,  be  unanimously  adopted  by  the  house  of  representatives,  and 
yet  be  prevented  by  the  senators  of  two  counties  from  going  into 
effect.  If  this  was  a  part  of  the  system,  it  formed  an  additional 
reason  for  opposing  it.  He  said  there  was  no  inconsistency  in 
adopting  some  of  the  resolutions  of  the  committee,  and  rejecting 
others.  He  thought  the  choice  of  senators  by  districts,  according 
to  the  resolutions  of  the  gentleman  from  Roxbury,  was  an  equal 
system  ;  if  he  was  wrong,  let  some  other  system  be  taken  for  the 
senate.  If  a  part  of  the  plan  of  the  select  committee  was  adopted, 
it  did  not  follow  that  gentlemen  must  vote  for  the  whole.  The 
chairman  of  that  committee  would  allow  him  to  say  that  there  were 
intrinsic  difficulties  in  the  subject,  and  he  trusted  that  if  he  was 
mistaken  in  his  opinions  in  relation  to  it,  he  should  not  on  that 
account  forfeit  all  title  to  esteem.  He  had  no  hostility  to  compro- 
mises, but  he  was  unwilling  to  yield  principles.  If  any  sacrifice 
was  to  be  made,  he  preferred  that  it  should  be  made  on  the  altar  of 
the  people,  and  not  on  the  altar  of  wealth. 

Mr.  Kneeland  of  Andover  inquired  whether  it  was  necessary  to 
adopt  the  system  proposed  by  the  select  committee  in  regard  to  the 
house  of  representatives,  if  the  resolutions  reported  by  them,  respect- 
ing the  senate,  should  be  adopted.  He  said  he  was  in  favor  of  that 
part  of  their  report  which  relates  to  the  senate,  and  opposed  to  the 
present  resolutions  of  the  gentleman  from  Roxbury. 
Mr.  Webster  spoke  in  substance  as  follows  : 
I  know  not,  sir,  whether  it  be  probable  that  any  opinions  or  votes 
of  mine  are  ever  likely  to  be  of  more  permanent  importance,  than 
those  which  I  may  give  in  the  discharge  of  my  duties  in  this  body. 
And  of  the  questions  which  may  arise  here,  I  anticipate  no  one  of 
greater  consequence  than  the  present.  I  ask  leave  therefore  to 
submit  a  few  remarks  to  the  consideration  of  the  committee. 

The  subject  before  us,  is  the  manner  of  constituting  the  legisla- 
tive department  of  government.  We  have  already  decided  that  the 
legislative  power  shall  exist,  as  it  has  heretofore  existed,  in  two 
separate  and  distinct  branches,  a  senate  and  a  house  of  representa- 
tives. We  propose  also,  at  least  I  have  heard  no  intimation  of  a 
contrary  opinion,  that  these  branches  shall,  in  form,  possess  a 
negative  on  each  other.  And  I  presume  I  may  take  it  for  granted, 
that  the  members  of  both  these  houses  are  to  be  chosen  annually. 
The  immediate  question,  now  under  discussion  is,  in  what  manner 
shall  the  senators  be  elected  ?  They  are  to  be  chosen  in  districts  ; 
but  shall  they  be  chosen,  in  proportion  to  the  number  of  inhabitants 
in  each  district,  or,  in  other  words,  in  proportion  to  the  part  which 
each  district  bears  in  the  public  burdens  of  the  State.  The  latter  is 
the  existing  provision  of  the  constitution  ;  and  to  this  I  give  my 
support.  The  proposition  of  the  honorable  member  from  Roxbury, 
(Mr.  Dearborn)  proposes  to  divide  the  State  into  certain  legislative 
districts,  and  to  choose  a  given  number  of  senators,  and  a  given 
number  of  representatives,  in  each  district,  in  proportion  to  popula- 
tion.    This  I  understand.     It  is  a  simple  and  plain  system.     The 


MASSACHUSETTS    CONVENTION.  305 

honorable  member  from  Pittsfield,  and  the  honorable  member  from 
Worcester  support  the  first  part  of  this  proposition — that  is  to  say, 
that  part  which  provides  for  the  choice  of  senators,  according  to 
population — without  explaining  entirely  their  views,  as  to  the  latter 
part,  relative  to  the  choice  of  representatives.  They  insist  that  the 
questions  are  distinct,  and  capable  of  a  separate  consideration  and 
decision.  I  confess  myself,  sir,  unable  to  view  the  subject  in  that 
light.  It  seems  to  me  there  is  an  essential  propriety  in  considering 
the  questions  together ;  and  in  forming  our  opinions  on  the  consti- 
tution of  one,  with  reference  to  that  of  the  other.  The  Legislature 
is  one  great  machine  of  government,  not  two  machines  ;  the  two 
houses  are  its  parts,  and  its  utility  will  as  it  seems  to  me,  depend, 
not  merely  on  the  materials  of  these  parts,  or  their  separate  con- 
struction, but  on  their  accommodation  also,  and  adaptation  to  each 
other.  Their  balanced  and  regulated  movement,  when  united,  is 
that  which  is  expected  to  insure  safety  to  the  State ;  and  who  can 
give  any  opinion  on  this,  without  first  seeing  the  construction  of 
both,  and  considering  how  they  are  formed  and  arranged,  with 
respect  to  their  mutual  relation.  I  cannot  imagine,  therefore,  how 
the  member  from  Worcester  should  think  it  uncandid  to  inquire  of 
him,  since  he  supports  this  mode  of  choosing  senators,  what  mode 
he  proposes  for  the  choice  of  representatives. 

It  has  been  said,  that  the  constitution,  as  it  now  stands,  gives 
more  than  an  equal  and  proper  number  of  senators  to  the  county  of 
Suffolk.  I  hope  I  may  be  thought  to  contend  for  the  general  prin- 
ciple, without  being  influenced  by  any  regard  to  its  local  application. 
I  do  not  inquire,  whether  the  senators  whom  this  principle 
brings  into  the  government,  will  come  from  the  county  of  Suffolk, 
or  from  the  Housatonic  River,  or  the  extremity  of  Cape  Cod.  I 
wish  to  look  only  to  the  principle,  and  as  I  believe  that  to  be  sound 
and  salutary,  I  give  my  vote  in  favor  of  maintaining  it. 

In  my  opinion,  sir,  there  are  two  questions  before  the  com- 
mittee ;  the  first  is,  shall  the  legislative  department  be  constructed 
with  any  other  check,  than  such  as  arises  simply  from  dividing  the 
members  of  this  department  into  two  houses  ?  The  second  is,  if 
such  other  and  further  check  ought  to  exist,  in  what  manner  shall 
it  be  created  ? 

If  the  two  houses  are  to  be  chosen  in  the  manner  proposed  by  the 
resolutions  of  the  member  from  Roxbury,  there  is  obviously  no 
other  check  or  control  than  a  division  into  separate  chambers.  The 
members  of  both  houses  are  to  be  chosen  at  the  same  time,  by  the 
same  electors,  in  the  same  districts,  and  for  the  same  term  of  oilier. 
They  will  of  course  all  be  actuated  by  the  same  feelings  and  inter- 
ests. Whatever  motives  may  at  the  moment  exist,  to  elect  particular 
members  of  one  house,  will  operate  equally  on  the  choice  of  mem- 
bers of  the  other.  There  is  so  little  of  real  utility  in  this  mode 
that,  if  nothing  more  be  done,  it  would  be  more  expedient  to  choose 
all  the  members  of  the  Legislature,  without  distinction,  simply  as 
members  of  the  Legislature,  and  to  make  the  division  into  two 
39 


306  MASSACHUSETTS     CONVENTION. 

houses,  either  by  lot,  or  otherwise,  after  these  members,  thus  chosen, 
should  have  come  up  to  the  Capital. 

I  understand  the  reason  of  checks  and  balances,  in  the  legislative 
power,  to  arise  from  the  truth  that,  in  representative  governments, 
that  department  is  the  leading  and  predominating  power ;  and  if 
its  will  may  be,  at  any  time,  suddenly  and  hastily  expressed,  there 
is  great  danger  that  it  may  overthrow  all  other  powers.  Legislative 
bodies  naturally  feel  strong,  because  they  are  numerous,  and  because 
they  consider  themselves  as  the  immediate  representatives  of  the 
people.  They  depend  on  public  opinion  to  sustain  their  measures, 
and  they  undoubtedly  possess  great  means  of  influencing  public 
opinion.  With  all  the  guards  which  can  be  raised  by  constitutional 
provisions,  we  are  not  likely  to  be  too  well  secured  against  cases 
of  improper,  or  hasty,  or  intemperate  legislation.  It  may  be  ob- 
served, also,  that  the  executive  power,  so  uniformly  the  object  of 
jealousy  to  republics,  has  become,  in  the  states  of  this  Union,  de- 
prived of  the  greatest  part,  both  of  its  importance  and  its  splendor, 
by  the  establishment  of  the  general  government.  While  the  states 
possessed  the  power  of  making  war  and  peace,  and  maintained 
military  forces  by  their  own  authority,  the  power  of  the  state  ex- 
ecutives was  very  considerable,  and  respectable.  It  might  then  even 
be  an  object,  in  some  cases,  of  a  just  and  warrantable  jealousy.  But 
a  great  change  has  been  wrought.  The  care  of  foreign  relations, 
the  maintenance  of  armies  and  navies,  and  their  command  and 
control,  have  devolved  on  another  government.  Even  the  power 
of  appointment,  so  exclusively,  one  would  think,  an  executive  power, 
is,  in  very  many  of  the  states,  held  or  controlled  by  the  legislature  ; 
that  department  either  making  the  principal  appointments,  itself,  or 
else  surrounding  the  chief  executive  magistrate  with  a  council  of 
its  own  election,  possessing  a  negative  upon  his  nominations. 

Nor  has  it  been  found  easy,  nor  in  all  cases  possible,  to  preserve 
the  judicial  department  from  the  progress  of  legislative  encroachment. 
Indeed,  in  some  of  the  states  all  judges  are  appointed  by  the  legis- 
lature ;  in  others,  although  appointed  by  the  executive,  they  are 
removable  at  the  pleasure  of  the  legislature.  In  all,  the  provision 
for  their  maintenance  is  necessarily  to  be  made  by  the  legislature. 
As  if  Montesquieu  had  never  demonstrated  the  necessity  of  separat- 
ing the  departments  of  government  ;  as  if  Mr.  Adams  had  not  done 
the  same  thing,  with  equal  ability,  and  more  clearness,  in  his 
defence  of  the  American  Constitution ;  as  if  the  sentiments  of  Mr. 
Hamilton  and  Mr.  Madison  were  already  forgotten  :  we  see,  all 
aroimd  us,  a  tendency  to  extend  the  legislative  power  over  the 
proper  sphere  of  the  other  departments.  And  as  the  legislature, 
from  the  very  nature  of  things,  is  the  most  powerful  department,  it 
becomes  necessary  to  provide,  in  the  mode  of  forming  it,  some  check 
which  shall  ensure  deliberation  and  caution  in  its  measures.  If  all 
legislative  power  rested  in  one  house,  it  is  very  problematical, 
whether  any  proper  independence  could  be  given,  either  to  the  exec- 
utive or  the  judiciary.     Experience,  does  not   speak  encouragingly 


MASSACHUSETTS    CONVENTION.  307 

on  that  point.  If  we  look  through  the  several  constitutions  of  the 
states,  we  shall  perceive  that  generally  the  departments  are  most 
distinct  and  independent,  where  the  legislature  is  composed  of  two 
houses,  with  equal  authority,  and  mutual  checks.  If  all  legislative 
power  be  in  one  popular  body,  all  other  power,  sooner  or  later,  will 
be  there  also. 

I  wish  now,  sir,  to  correct  a  most  important  mistake,  in  the  man- 
ner in  which  this  question  has  been  stated.     It  has  been  said,  that 
we  propose  to  give  to  property,  merely  as  such,   a  control  over  the 
people  numerically  considered.     But  this  I  take  not  to  be  at  all  the 
true  nature  of  the  proposition.     The  senate  is  not  to  be  a  check  on 
the  people,  but  on  the  house  of  representatives.     It  is  the  case  of  an 
authority,  given  to  one  agent,  to  check  or  control  the  acts  of  another. 
The  people,  having  conferred  on  the  house  of  representatives,  powers 
which  are  great,  and,  from  their  nature,  liable  to  abuse,  require  for 
their   own  security  another  house,   which  shall  possess  an  effectual 
negative  on  the  first.     This  does  not  limit  the  power  of  the  people  ; 
but  only  the  authority  of  their  agents.     It  is  not  a  restraint  on  their 
rights  ,  but  a  restraint  on  that  power  which  they  have  delegated.     It 
limits  the  authority  of  agents,  in  making  laws  to  bind  their  princi- 
ples.    And  if  it  be  wise  to  give  one  agent  the  power  of  checking  or 
controlling  another,  it  is  equally  wise,  most  manifestly,  that  there 
should  be  some  difference  of  character,  sentiment,  feeling,  or  origin, 
in  that  agent,  who  is  to  possess  this  control.     Otherwise,  it  is  not  at 
all  probable  that  the  control  will  ever  be  exercised.     To  require  the 
consent  of  two  agents  to  the  validity  of  an  act,  and  yet  to  appoint 
agents  so  similar,   in  all  respects,  as  to  create  a  moral  certainty  that 
what  one  does  the  other  will  do  also,  would  be  inconsistent  and  nu- 
gatory.    There  can  be  no  effectual  control  without  some  difference 
of  origin,   or  character,   or  interest,  or  feeling,  or  sentiment.     And 
the  great  question,  in  this  country,  has  been,  where  to  find,  or  how 
to  create  this  difference,  in  governments  entirely  elective  and  popu- 
lar ?     Various  modes  have  been  attempted,  in  various  states.     In 
some,  a  difference  of  qualification  has  been  required,  in  the  persons 
to  be  elected.     This  obviously  produces   little  or  no  effect.     All 
property  qualification,  even  the  highest,   is  so  low  as  to  produce  no 
exclusion,  to  any  extent,  in  any  of  the  states.     A  difference  of  age, 
in  the    persons  elected,  is  sometimes  required;    but  this  is  found 
to   be   equally  unimportant.     It  has  not  happened,  either,  that  any 
consideration  of  the  relative  rank  of  the  members  of  the  two  houses 
has  had  much  effect  on  the  character  of  their  constituent  members. 
Both  in  the  state  governments,  and  in  the  United  States  government, 
we  daily  see  persons  elected  into  the  house  of  representatives  who 
have  been  members  of  the  senate.     Public  opinion  does  not  attach 
so  much  weight  and  importance  to  the  distinction,   as  to  lead  indi- 
viduals greatly  to  regard  it.    In  some  of  the  states,  a  different  sort  of 
qualification   in   the   electors  is   required,   for  the  two  houses  ;  and 
this  is  probably  the  most  proper  and  efficient  check.     But  such  has 
not  been  the  provision  in  this  Commonwealth,  and  there  are  strong 


308  MASSACHUSETTS    CONVENTION. 

objections  to  introducing  it.  In  other  cases,  again,  there  is  a  double 
election  for  senators  ;  electors  being  first  chosen,  who  elect  senators. 
Such  is  the  constitution  of  Maryland :  in  which  the  senators  are 
elected,  for  five  years,  by  electors,  appointed  in  equal  numbers  by 
the  counties  ;  a  mode  of  election  not  unlike  that  of  choosing  repre- 
sentatives in  Parliament  for  the  boroughs  of  Scotland.  In  this 
State  the  qualification  of  the  voters  is  the  same,  and  there  is  no 
essential  difference  in  that  of  the  persons  chosen.  But,  in  appor- 
tioning the  senate  to  the  different  districts  of  the  State,  the  present 
constitution  assigns  to  each  district,  a  number  proportioned  to  its 
public  taxes.  Whether  this  be  the  best  mode  of  producing  a 
difference  in  the  construction  of  the  two  houses,  is  not  now  the 
question ;  but  the  question  is,  whether  this  be  better  than  no 
mode. 

The  gentleman  from  Roxbury  called  for  authority  on  this  sub- 
ject. He  asked  what  writer  of  reputation  had  approved  the  princi- 
ple for  which  we  contend.  I  should  hope,  sir,  that  even  if  this  call 
could  not  be  answered,  it  would  not  necessarily  follow  that  the 
principle  should  be  expunged.  Governments  are  instituted  for  prac- 
tical benefit,  not  for  subjects  of  speculative  reasoning  merely.  The 
best  authority  for  the  support  of  a  particular  principle  or  provision 
in  government,  is  experience  ;  and,  of  all  experience,  our  own,  if  it 
have  been  long  enough  to  give  the  principle  a  fair  trial,  should  be 
most  decisive.  This  provision  has  existed  for  forty  years ;  and 
while  so  many  gentlemen  contend  that  it  is  wrong  in  theory,  no 
one  has  shown  that  it  has  been  either  injurious  or  inconvenient  in 
practice.  No  one  pretends  that  it  has  caused  a  bad  law  to  be  en- 
acted or  a  good  one  to  be  rejected.  To  call  on  us,  then,  to  strike 
out  this  provision,  because  we  should  be  able  to  find  no  authority 
for  it  in  any  book  on  government,  would  seem  to  be  like  requiring 
a  mechanic  to  abandon  the  use  of  an  implement,  which  had  always 
answered  all  the  purposes  designed  by  it,  because  he  could  find  no 
model  of  it  in  the  patent  office. 

But,  sir,  I  take  the  principle  to  be  well  established  by  writers  of 
the  greatest  authority.  In  the  first  place,  those  who  have  treated 
of  natural  law  have  maintained,  as  a  principle  of  that  law,  that,  as 
far  as  the  object  of  society  is  the  protection  of  something  in  which 
the  members  possess  unequal  shares,  it  is  just  that  the  weight  of 
each  person  in  the  common  councils,  should  bear  a  relation  and 
proportion  to  his  interest.  Such  is  the  sentiment  of  Grotius,  and 
he  refers,  in  support  of  it,  to  several  institutions  among  the  ancient 
states. 

Those  authors,  who  have  written  more  particularly  on  the  sub- 
ject of  political  institutions,  have,  many  of  them,  maintained  similar 
sentiments.  Not,  indeed,  that  every  man's  power  should  be  in  ex- 
act proportion  to  his  property,  but  that,  in  a  general  sense,  and  in  a 
general  form,  property,  as  such,  should  have  its  weight  and  influ- 
ence in  political  arrangement.  Montesquieu  speaks,  with  approba- 
tion,  of  the  early  Roman  regulation,  made  by  Servius  Tullius,  by 


MASSACHUSETTS     CONVENTION.  309 

which  the  people  were  distributed  into  classes  according  to  their 
property,  and  the  public  burdens  apportioned  to  each  individual, 
according  to  the  degree  of  power  which  he  possessed  in  the  govern- 
ment. By  which  regulation,  he  observes,  some  bore  with  the 
greatness  of  their  tax,  because  of  their  proportionable  participation 
in  power  and  credit  ;  others  consoled  themselves  for  the  smallness 
of  their  power  and  credit,  by  the  smallness  of  their  tax.  One  of 
the  most  ingenious  of  political  writers  is  Mr.  Harrington,  an  author 
not  now  read  so  much  as  he  deserves.  It  is  his  leading  object,  in 
his  "  Oceana,"  to  prove,  that  power  naturally  and  necessarily  fol- 
lows property.  He  maintains  that  a  government,  founded  on 
property,  is  legitimately  founded ;  and  that  a  government  founded 
on  the  disregard  of  property  is  founded  in  injustice,  and  can  only 
be  maintained  by  military  force.  "If  one  man,"  says  he,  "be  sole 
landlord,  like  the  grand  seignior,  his  empire  is  absolute.  If  a  few 
possess  the  land,  this  makes  the  gothic  or  feudal  constitution.  If 
the  whole  people  be  landlords,  then  is  it  a  Commonwealth."  "  It 
is  strange,"  says  Mr.  Pope,  in  one  of  his  recorded  conversations, 
"  that  Harrington  should  be  the  first  man  to  find  out  so  evident  and 
demonstrable  a  truth,  as  that  of  property  being  the  true  basis  and 
measure  of  power."  In  truth  he  was  not  the  first :  the  idea  is  as 
old  as  political  science  itself.  It  may  be  found  in  Aristotle,  Lord 
Bacon,  Sir  Walter  Raleigh,  and  other  writers.  Harrington  seems, 
however,  to  be  the  first  writer  who  has  illustrated  and  expanded  the 
principle,  and  given  to  it  the  effeat  and  prominence  which  justly 
belong  to  it.  To  this  sentiment,  sir,  I  entirely  agree.  It  seems  to 
me  to  be  plain,  that,  in  the  absence  of  military  force,  political 
power  naturally  and  necessarily  goes  into  the  hands  which  hold 
the  property.  In  my  judgment,  therefore,  a  republican  form  of 
government  rests  not  more  on  political  constitutions  than  on  those 
laws  which  regulate  the  descent  and  transmission  of  property. 
Governments  like  ours  could  not  have  been  maintained,  where 
property  was  holden  according  to  the  principles  of  the  feudal  system  ; 
nor,  on  the  other  hand,  could  the  feudal  constitution  possibly  exist 
with  us.  Our  New  England  ancestors  brought  hither  no  great  capi- 
tals from  Europe  ;  and  if  they  had,  there  was  nothing  productive 
in  which  they  could  have  been  invested.  They  left  behind  them 
the  whole  feudal  system  of  the  other  continent.  They  broke  away 
at  once  from  that  system  of  military  service,  established  in  the  dark 
ages,  and  which  continues,  down  even  to  the  present  time,  more  or 
less  to  affect  the  condition  of  property  all  over  Europe.  They 
came  to  a  new  country.  There  were,  as  yet,  no  lands  yielding 
rent,  and  no  tenants  rendering  service.  The  whole  soil  was  unre- 
claimed from  barbarism.  They  were,  themselves,  either  from  their 
original  condition,  or  from  the  necessity  of  their  common  interest, 
nearly  on  a  general  level  in  respect  to  property.  Their  situation 
demanded  a  parcelling  out  and  division  of  the  lands  :  and  it  may 
be  fairly  said,  that  this  necessary  act  fixed  the  future  frame  and  form 
of  their  government.     The  character  of  their   political  institutions 


310  MASSACHUSETTS    CONVENTION. 

was  determined  by  the  fundamental  laws  respecting  property.  The 
laws  rendered  estates  divisible  among  sons  and  daughters.  The 
right  of  primogeniture,  at  first  limited  and  curtailed,  was  afterwards 
abolished.  The  property  was  all  freehold.  The  entailment  of 
estates,  long  trusts,  and  the  other  processes  for  fettering  and  tying 
up  inheritances,  were  not  applicable  to  the  condition  of  society,  and 
seldom  made  use  of.  On  the  contrary,  alienation  of  the  land  was 
every  way  facilitated,  even  to  the  subjecting  of  it  to  every  species  of 
debt.  The  establishment  of  public  registries,  and  the  simplicity  of 
our  forms  of  conveyance,  have  greatly  facilitated  the  change  of  real 
estate  from  one  proprietor  to  another.  The  consequence  of  all  these 
causes  has  been,  a  great  subdivision  of  the  soil,  and  a  great  equality 
of  condition ;  the  true  basis,  most  certainly,  of  a  popular  govern- 
ment. "  If  the  people,"  says  Harrington,  "hold  three  parts  in  four 
of  the  territory,  it  is  plain  there  can  neither  be  any  single  person 
nor  nobility  able  to  dispute  the  government  with  them  ;  in  this 
case,  therefore,  except  force  be  interposed,  they  govern  themselves." 

The  history  of  other  nations  may  teach  us  how  favorable  to 
public  liberty  is  the  division  of  the  soil  into  small  freeholds,  and  a 
system  of  laws,  of  which  the  tendency  is,  without  violence  or  injus- 
tice, to  produce  and  to  preserve  a  degree  of  equality  of  property. 
It  has  been  estimated,  if  I  mistake  not,  that  about  the  time  of  Henry 
the  Seventh,  four  fifths  of  the  land  in  England  was  holden  by  the 
great  barons  and  ecclesiastics.  The  effects  of  a  growing  commerce 
soon  afterwards  began  to  break  in  on  this  state  of  things,  and  be- 
fore the  Revolution  in  1688,  a  vast  change  had  been  wrought.  It 
is  probable,  perhaps,  that  for  the  last  half  century,  the  process  of 
subdivision  in  England  has  been  retarded,  if  not  reversed  ;  that  the 
great  weight  of  taxation  has  compelled  many  of  the  lesser  freehold- 
ers to  dispose  of  their  estates,  and  to  seek  employment  in  the  army 
and  navy,  in  the  professions  of  civil  life,  in  commerce,  or  in  the  col- 
onies. The  effect  of  this  on  the  British  constitution  cannot  but  be 
most  unfavorable.  A  few  large  estates  grow  larger  ;  but  the  num- 
ber of  those  who  have  no  estates  also  increases ;  and  there  may  be 
danger  lest  the  inequality  of  property  become  so  great,  that  those 
who  possess  it  may  be  dispossessed  by  force.  In  other  words,  that 
the  government  may  be  overturned. 

A  most  interesting  experiment  of  the  effect  of  a  subdivision  of 
property,  on  government,  is  now  making  in  France.  It  is  under- 
stood that  the  law  regulating  the  transmission  of  property,  in  that 
country,  now  divides  it,  real  and  personal,  among  all  the  children 
equally,  both  sons  and  daughters ;  and  that  there  is,  also,  a  very 
great  restraint  on  the  power  of  making  dispositions  of  property  by 
will.  It  has  been  supposed  that  the  effect  of  this  might  probably 
be,  in  time,  to  break  up  the  soil  into  such  small  subdivisions,  that 
the  proprietors  would  be  too  poor  to  resist  the  encroachments  of 
executive  power.  I  think  far  otherwise.  What  is  lost  in  individual 
wealth  will  be  more  than  gained  in  numbers,  in  intelligence,  and  in 
a  sympathy  of  sentiment.     If  indeed  only  one  or  a  few  landholders 


MASSACHUSETTS    CONVENTION.  311 

were  to  resist  the  crown,  like  the  barons  of  England,  they  must,  of 
course,  be  great  and  powerful  landholders,  with  multitudes  of  re- 
tainers, to  promise  success.  But  if  the  proprietors  of  a  given  extent 
of  territory  are  summoned  to  resistance,  there  is  no  reason  to  believe 
that  such  resistance  would  be  less  forcible  or  less  successful,  because 
the  number  of  such  proprietors  should  be  great.  Each  would 
perceive  his  own  importance,  and  his  own  interest,  and  would  feel 
that  natural  elevation  of  character  which  the  consciousness  of  prop- 
erty inspires.  A  common  sentiment  would  unite  all,  and  numbers 
would  not  only  add  strength,  but  excite  enthusiasm.  It  is  true 
that  France  possesses  a  vast  military  force,  under  the  direction  of  an 
hereditary  executive  government ;  and  military  power,  it  is  possi- 
ble, may  overthrow  any  government.  It  is  in  vain,  however,  in  this 
period  of  the  world,  to  look  for  security  against  military  power  to 
the  arm  of  the  great  landholders.  That  notion  is  derived  from  a 
state  of  things  long  since  past ;  a  state  in  which  a  feudal  baron, 
with  his  retainers,  might  stand  against  the  sovereign,  who  was  him- 
self but  the  greatest  baron,  and  his  retainers.  But  at  present,  what 
could  the  richest  landholder  do  against  one  regiment  of  disciplined 
troops  ?  Other  securities,  therefore,  against  the  prevalence  of  mili- 
tary power  must  be  provided.  Happily  for  us,  Ave  are  not  so  situ- 
ated as  that  any  purpose  of  national  defence  requires,  ordinarily  and 
constantly,  such  a  military  force  as  might  seriously  endanger  our 
liberties. 

In  respect,  however,  sir,  to  the  recent  law  of  succession  in 
France,  to  which  I  have  alluded,  I  would,  presumptuously  perhaps, 
hazard  a  conjecture,  that  if  the  government  do  not  change  the  law, 
the  law,  in  half  a  century,  will  change  the  government  ;  and  that 
this  change  will  be  not  in  favor  of  the  power  of  the  crown,  as  some 
European  writers  have  supposed,  but  against  it.  Those  writers 
only  reason  upon  what  they  think  correct  general  principles  in 
relation  to  this  subject.  They  acknowledge  a  want  of  experience. 
Here  we  have  had  that  experience ;  and  we  know  that  a  multitude 
of  small  proprietors,  acting  with  intelligence,  and  that  enthusiasm 
which  a  common  cause  inspires,  constitute  not  only  a  formidable, 
but  an  invincible  power. 

The  true  principle  of  a  free  and  popular  government  would  seem 
to  be,  so  to  construct  it  as  to  give  to  all,  or  at  least  to  a  very  great 
majority,  an  interest  in  its  preservation ;  to  found  it,  as  other  things 
are  founded,  on  men's-  interest.  The  stability  of  government  re- 
quires that  those  who  desire  its  continuance  should  be  more  power- 
ful than  those  who  desire  its  dissolution.  This  power,  of  course,  is 
not  always  to  be  measured  by  mere  numbers.  Education,  wealth. 
talents,  are  all  parts  and  elements  of  the  general  aggregate  of  power. 
But  numbers,  nevertheless,  constitute  ordinarily,  the  most  important 
consideration,  unless  indeed  there  be  a  military  force  in  the  hands 
of  the  few,  by  which  they  can  control  the  many.  In  this  country, 
we  have  actual  existing  systems  of  government,  in  the  protection 
of  which  it  would  seem  a  great  majority,  both  in  numbers  and  in 


312  MASSACHUSETTS    CONVENTION. 

other  means  of  power  and  influence,  must  see  their  interest.  But 
this  state  of  things  is  not  brought  about  merely  by  written  political 
constitutions,  or  the  mere  manner  of  organizing  the  government ; 
but  also  by  the  laws  which  regulate  the  descent  and  transmission 
of  property.  The  freest  government,  if  it  could  exist,  would  not 
be  long  acceptable,  if  the  tendency  of  the  laws  were  to  create  a 
rapid  accumulation  of  property  in  few  hands,  and  to  render  the 
great  mass  of  the  population  dependent  and  penniless.  In  such  a 
case  the  popular  power  must  break  in  upon  the  rights  of  property, 
or  else  the  influence  of  property  must  limit  and  control  the  exercise 
of  popular  power.  Universal  suffrage,  for  example,  could  not  long 
exist  in  a  community  where  there  was  great  inequality  of  property. 
The  holders  of  estates  would  be  obliged  in  such  case,  either  in  some 
way  to  restrain  the  right  of  suffrage,  or  else  such  right  of  suffrage 
would  ere  long  divide  the  property.  In  the  nature  of  things,  those 
who  have  not  property,  and  see  their  neighbors  possess  much  more 
than  they  think  them  to  need,  cannot  be  favorable  to  laws  made 
for  the  protection  of  property.  When  this  class  becomes  numerous, 
it  grows  clamorous.  It  looks  on  property  as  its  prey  and  plunder, 
and  is  naturally  ready,  at  all  times,  for  violence  and  revolution. 

It  would  seem,  then,  to  be  the  part  of  political  wisdom  to  found 
government  on  property  ;  and  to  establish  such  distribution  of  prop- 
erty, by  the  laws  which  regulate  its  transmission  and  alienation,  as 
to  interest  the  great  majority  of  society  in  the  protection  of  the 
government.  This  is,  I  imagine,  the  true  theory  and  the  actual 
practice  of  our  republican  institutions.  With  property  divided,  as 
we  have  it,  no  other  government  than  that  of  a  republic  could  be 
maintained,  even  were  we  foolish  enough  to  desire  it.  There  is 
reason,  therefore,  to  expect  a  long  continuance  of  our  systems. 
Party  and  passion,  doubtless,  may  prevail  at  times,  and  much  tem- 
porary mischief  be  done.  Even  modes  and  forms  may  be  changed, 
and  perhaps  for  the  worse.  But  a  great  revolution  in  regard  to  prop- 
erty must  take  place,  before  our  governments  can  be  moved  from 
their  republican  basis,  unless  they  be  violently  struck  off  by  military 
power.  The  people  possess  the  property,  more  emphatically  than 
it  could  ever  be  said  of  the  people  of  any  other  country,  and  they 
can  have  no  interest  to  overturn  a  government  which  protects  that 
property  by  equal  laws. 

If  the  nature  of  our  institutions  be  to  found  government  on 
property,  and  that  it  should  look  to  those  who  hold  property  for 
its  protection,  it  is  entirely  just  that  property  should  have  its  due 
weight  and  consideration  in  political  arrangements.  Life  and  per- 
sonal liberty  are,  no  doubt,  to  be  protected  by  law  ;  but  property  is 
also  to  be  protected  by  law,  and  is  the  fund  out  of  which  the  means 
for  protecting  life  and  liberty  are  usually  furnished.  We  have  no 
experience  that  teaches  us,  that  any  other  rights  are  safe,  where 
property  is  not  safe.  Confiscation  and  plunder  are  generally,  in  rev- 
olutionary commotions,  not  far  before  banishment,  imprisonment 
and  death.     It  would  be  monstrous  to  give  even  the  name  of  gov- 


MASSACHUSETTS    CONVENTION.  313 

ernment,  to  any  association,  in  which  the  rights  of  property  should 
not  be  competently  secured.  The  disastrous  revolutions  which  the 
world  has  witnessed ;  those  political  thunder-storms  and  earth- 
quakes which  have  overthrown  the  pillars  of  society  from  their 
very  deepest  foundations,  have  been  revolutions  against  property. 
Since  the  honorable  member  from  Quincy  (President  Adams)  has 
alluded,  on  this  occasion,  to  the  history  of  the  ancient  states,  it  would 
be  presumption,  in  me,  to  dwell  upon  it.  It  may  be  truly  said,  how- 
ever, I  think,  that  Rome  herself  is  an  example  of  the  mischievous 
influence  of  the  popular  power,  when  disconnected  with  property, 
and  in  a  corrupt  age.  It  is  true,  the  arm  of  Cassar  prostrated  her 
liberty ;  but  Caesar  found  his  support  within  her  very  walls.  Those 
who  were  profligate,  and  necessitous,  and  factious,  and  desperate,  and 
capable,  therefore,  of  being  influenced  by  bribes  and  largesses,  which 
were  distributed  with  the  utmost  prodigality,  outnumbered  and  out- 
voted, in  the  tribes  and  centuries,  the  substantial,  sober,  prudent  and 
faithful  citizens.  Property  was  in  the  hands  of  one  description  of 
men,  and  power  in  those  of  another;  and  the  balance  of  the  consti- 
tution was  destroyed.  Let  it  never  be  forgotten  that  it  was  the  popular 
magistrates,  elevated  to  office  where  the  bad  outnumbered  the  good, 
where  those  who  had  no  stake  in  the  Commonwealth,  by  clamor, 
and  noise,  and  numbers,  drowned  the  voice  of  those  who  had,  that 
laid  the  neck  of  Rome  at  the  foot  of  her  conqueror.  When  Cassar, 
manifesting  a  disposition  to  march  his  army  into  Italy,  approached 
that  little  stream,  which  has  become  so  memorable  from  its  asso- 
ciation with  his  character  and  conduct,  a  decree  was  proposed  in  the 
senate,  declaring  him  a  public  enemy,  if  he  did  not  disband  his 
troops.  To  this  decree  the  popular  tribunes,  the  sworn  protectors 
of  the  people,  interposed  their  negative  ;  and  thus  opened  the  high 
road  of  Italy,  and  the  gates  of  Rome  herself,  to  the  approach  of 
her  conqueror. 

The  English  revolution  of  1688  was  a  revolution  in  favor  of  prop- 
erty, as  well  as  of  other  rights.  It  was  brought  about  by  the  men 
of  property,  for  their  security ;  and  our  own  immortal  revolution 
was  undertaken,  not  to  shake  or  plunder  property,  but  to  protect  it. 
The  acts  of  which  the  country  complained,  were  such  as  violated 
rights  of  property.  An  immense  majority  of  all  those  who  had  an 
interest  in  the  soil  were  in  favor  of  the  revolution  ;  and  they  carried 
it  through,  looking  to  its  results  for  the  security  of  their  possessions. 
It  was"  the  property  of  the  frugal  yeomanry  of  New-England,  hard 
earned,  but  freely  given,  that  enabled  her  to  act  her  proper  part,  and 
perform  her  full  duty,  in  achieving  the  independence  of  the  country. 

I  would  not  be  thought,  Mr.  Chairman,  to  be  among  those  who 
underrate  the  value  of  military  service.  My  heart  beats,  I  trust,  as 
responsive  as  any  one's,  to  a  soldier's  claim  for  honor  and  renown. 
It  has  ever  been  my  opinion,  however,  that  while  celebrating  the 
military  achievements  of  our  countrymen,  in  the  revolutionary  con- 
test, we  have  not  always  done  equal  justice  to  the  merits,  and  the 
sufferings  of  those  who  sustained,  on  their  propertv.  and  on  their 
4U 


314  MASSACHUSETTS    CONVENTION. 

means  of  subsistence,  the  great  burden  of  the  war.     Any  one,  who 
has  had  occasion  to  be  acquainted  with  the  records  of  the  New- 
England    towns,  knows  well  how  to  estimate    those   merits,   and 
those   sufferings.       Nobler    records   of   patriotism    exist    nowhere. 
Nowhere    can  there  be  found  higher  proofs  of  a  spirit,  that  was 
ready  to  hazard  all,  to  pledge  all,  to  sacrifice  all,  in  the  cause  of 
the  country.     Instances  were  not  unfrequent,  in  which  small  free- 
holders parted  with  their  last  hoof,  and  the  last  measure  of  corn 
from    their    granaries,   to    supply   provisions    for    the    troops,    and 
hire  service  for  the  ranks.     The  voice  of  Otis  and  of  Adams   in 
Faneuil  Hall,  found  its  full  and  true  echo,  in  the  little  councils  of 
the  interior  towns  ;  and  if,  within  the  continental  congress,  patriot- 
ism shone  more  conspicuously,  it  did  not  there  exist  more  truly,  nor 
burn  more  fervently  ;  it  did  not  render  the  day  more  anxious,  or  the 
night  more  sleepless  ;  it  sent  up  no  more  ardent  prayer  to  God  for 
succor ;  and   it  put  forth,  in  no  greater  degree,  the  fullness  of  its 
effort,  and  the  energy  of  its  whole  soul  and  spirit,  in  the  common 
cause,  than  it  did  in  the  small  assemblies  of  the  towns.     I  cannot, 
therefore,  sir,  agree  that  it  is  in  favor  of  society,  or  in  favor  of  the 
people,  to  constitute  government,  with  an  entire  disregard  to   those 
who  bear  the   public  burdens,  in  times   of  great  exigency.     This 
question  has  been  argued,  as  if  it  were  proposed  only  to  give  an  ad- 
vantage to  a  few  rich  men.     I  do  not  so  understand  it.     I  consider 
it  as  giving  property,  generally,  a  representation  in  the  senate,  both 
because  it  is  just  that  it  should  have  such  representation,  and  because 
it  is  a  convenient  mode  of  providing  that  check,  which  the  consti- 
tution of  the  Legislature   requires.     I  do   not  say  that  such  check 
might  not  be  found  in  some  other  provision  ;  but  this  is  the  provis- 
ion already  established,  and  it  is,  in  my  opinion,  a  just  and  proper 
one. 

I  will  beg  leave  to  ask,  sir,  whether  property  may  not  be  said  to 
deserve  this  portion  of  respect  and  power  in  the  government  ?  It 
pays,  at  this  moment,  I  think,  jive  sixths  of  all  the  public  taxes; 
one  sixth  only  being  raised  on  persons.  Not  only,  sir,  do  these  taxes 
support  those  burdens,  which  all  governments  require,  but  we  have, 
in  New-England,  from  early  times  holden  property  to  be  subject  to 
another  great  public  use  ; — I  mean  the  support  of  schools. 

In  this  particular  we  may  be  allowed  to  claim  a  merit  of  a  very 
high  and  peculiar  character.  This  Commonwealth,  with  other  of 
the  New-England  States,  early  adopted,  and  has  constantly  main- 
tained the  principle,  that  it  is  the  undoubted  right,  and  the  bounden 
duty  of  government,  to  provide  for  the  instruction  of  all  youth. 
That  which  is  elsewhere  left  to  chance,  or  to  charity,  we  secure  by 
law.  For  the  purpose  of  public  instruction,  we  hold  every  man 
subject  to  taxation,  in  proportion  to  his  property,  and  we  look  not 
to  the  question,  whether  he,  himself,  have,  or  have  not,  children 
to  be  benefited  by  the  education  for  which  he  pays.  We  regard  it 
as  a  wise  and  liberal  system  of  police,  by  which  property,  and 
life,  and  the  peace  of  society  are  secured.     We  seek  to   prevent,  in 


MASSACHUSETTS    CONVENTION.  315 

some  measure,  the  extension  of  the  penal  code,  by  inspiring  a  salu- 
tary and  conservative  principle  of  virtue  and  of  knowledge,  in  an 
early  age.  We  hope  to  excite  a  feeling  of  respectability  and  a  sense 
of  character,  by  enlarging  the  capacity,  and  increasing  the  sphere  of 
intellectual  enjoyment.  By  general  instruction,  we  seek,  as  far  as 
possible,  to  purify  the  whole  moral  atmosphere  ;  to  keep  good  sen- 
timents uppermost,  and  to  turn  the  strong  current  of  feeling  and 
opinion,  as  well  as  the  censures  of  the  law.  and  the  denunciations  of 
religion,  against  immorality  and  crime*  We  hope  for  a  security,  be- 
yond the  law,  and  above  the  law,  in  the  prevalence  of  enlightened 
and  well-principled  moral  sentiment.  We  hope  to  continue,  and  to 
prolong  the  time,  when,  in  the  villages  and  farm  houses  of  New- 
England,  there  may  be  undisturbed  sleep,  within  unbarred  doors. 
And  knowing  that  our  government  rests  directly  on  the  public  will, 
that  we  may  preserve  it,  we  endeavor  to  give  a  safe  and  proper  di- 
rection to  that  public  will.  We  do  not,  indeed,  expect  all  men  to  be 
philosophers,  or  statesmen  ;  but  we  confidently  trust,  and  our  expec- 
tation of  the  duration  of  our  system  of  government  rests  on  that 
trust,  that  by  the  diffusion  of  general  knowledge,  and  good  and  vir- 
tuous sentiments,  the  political  fabric  may  be  secure,  as  well  against 
open  violence  and  overthrow,  as  against  the  slow  but  sure  under- 
mining of  licentiousness. 

We  know,  sir,  that  at  the  present  time  an  attempt  is  making  in  the 
English  parliament  to  provide  by  law  for  the  education  of  the  poor, 
and  that  a  gentleman  of  distinguished  character,  (Mr.  Brougham) 
has  taken  the  lead,  in  presenting  a  plan  to  government  for  carrying 
that  purpose  into  effect.  And  yet,  although  the  representatives  of 
the  three  kingdoms  listened  to  him  with  astonishment,  as  well  as 
delight,  we  hear  no  principles  with  which  we  ourselves  have  not 
been  familiar  from  youth;  we  see  nothing  in  the  plan,  but  an  ap- 
proach towards  that  system  which  has  been  established  in  this  State, 
for  more  than  a  century  and  a  half.  It  is  said,  that  in  England,  not 
more  than  one  child  in  fifteen,  possesses  the  means  of  being  taught 
to  read  and  write  ;  in  Wales,  one  in  twenty ;  in  France,  until  lately, 
when  some  improvement  was  made,  not  more  than  one  in  thirty- 
five.  Now,  sir,  it  is  hardly  too  strong  to  say  that  in  this  State,  every 
child  possesses  such  means.  It  would  be  difficult  to  find  an  instance 
to  the  contrary  unless  where  it  was  owing  to  the  negligence  of  the 
parent — and  in  truth  the  means  are  actually  used  and  enjoyed  by 
nearly  every  one.  A  youth  of  fifteen,  of  either  sex,  who  cannot 
both  read  and  write,  is  very  unfrequently  to  be  found.  How  many 
such  can  any  member  of  this  Convention  remember  to  have  met 
with  in  ten  years?  Sir.  who  can  make  this  comparison,  or  contem- 
plate this  spectacle,  without  delight,  and  a  feeling  of  just  pride  ? 
And  yet,  sir.  what  is  it,  but  the  property  of  the  rich,  devoted,  by 
law,  to  the  education  of  the  poor,  which  has  produced  this  staje  of 
things  ?  Does  any  history  show  property  more  beneficently  applied  ? 
Did  any  government  ever  subject  the  property  of  those  who  have 
estates,  to  a  burden,  for  a  purpose  more  favorable  to  the  poor,  or  more 


316  MASSACHUSETTS    CONVENTION. 

useful  to  the  whole  community  ?  Sir,  property  and  the  power  which 
the  law  exercises  over  it,  for  the  purpose  of  instruction,  is  the  basis 
of  the  system.  It  is  entitled  to  the  respect  and  protection  of  gov- 
ernment, because,  in  a  very  vital  respect,  it  aids  and  sustains  gov- 
ernment. The  honorable  member  from  Worcester,  in  contending 
for  the  admission  of  the  mere  popular  principle  in  all  branches  of  the 
government,  told  us,  that  our  system  rested  on  the  intelligence  of 
the  community.  He  told  us  truly.  But  allow  me,  sir,  to  ask  the 
honorable  gentleman,  what,  but  property,  supplies  the  means  of  that 
intelligence  ?  What  living  fountain  feeds  this  ever-flowing,  ever- 
refreshing,  ever-fertilizing  stream,  of  public  instruction  and  general 
intelligence  ?  If  we  take  away  from  the  towns  the  power  of  assess- 
ing taxes  on  property,  will  the  school  houses  remain  open  ?  If  we 
deny  to  the  poor,  the  benefit  which  they  now  derive  from  the  prop- 
erty of  the  rich,  will  their  children  remain  on  their  forms,  or  will 
they  not,  rather,  be  in  the  streets,  in  idleness  and  in  vice  ? 

I  might  ask,  again,  sir,  how  is  it  with  religious  instruction  ?  Do 
not  the  towns  and  parishes  raise  money,  by  vote  of  the  majority, 
assessed  on  property,  for  the  maintenance  of  religious  worship  ?  Are 
not  the  poor,  as  well  as  the  rich,  benefited  by  the  means  of  attend- 
ing on  public  worship,  and  do  they  not,  equally  with  the  rich,  possess 
a  voice  and  vote,  in  the  choice  of  the  minister,  and  in  all  other  parish 
concerns  ?  Does  any  man,  sir,  wish  to  try  the  experiment  of  strik- 
ing out  of  the  constitution  the  regard  which  it  has  hitherto  main- 
tained for  property,  and  of  foregoing  also  the  extraordinary  benefit 
which  society  among  us,  for  near  two  centuries,  has  derived,  from 
laying  the  burden  of  religious  and  literary  instruction  of  all  classes 
upon  property  ?  Does  any  man  wish  to  see  those  only  worshipping 
God,  who  are  able  to  build  churches  and  maintain  ministers  for 
themselves  ;  and  those  children  only  educated,  whose  parents  possess 
the  means  of  educating  them  ?  Sir,  it  is  as  unwise  as  it  is  unjust, 
to  make  property  an  object  of  jealousy.  Instead  of  being,  in  any 
just  sense,  a  popular  course,  such  a  course  would  be  most  injurious 
and  destructive^ to  the  best  interest  of  the  people.  The  nature  of 
our  laws  sufficiently  secures  us  against  any  dangerous  accumulations  ; 
and,  used  and  diffused,  as  we  have  it,  the  whole  operation  of  prop- 
erty is  in  the  highest  degree  useful,  both  to  the  rich  and  to  the  poor. 
I  rejoice,  sir,  that  every  man  in  this  community  may  call  all  prop- 
erty his  own,  so  far  as  he  has  occasion  for  it,  to  furnish  for  himself 
and  his  children  the  blessings  of  religious  instruction  and  the  ele- 
ments of  knowledge.  This  celestial,  and  this  earthly  light,  he  is 
entitled  to  .by  the  fundamental  laws.  It  is  every  poor  man's  un- 
doubted birthright,  it  is  the  great  blessing  which  this  constitution 
has  secured  to  him,  it  is  his  solace  in  life,  and  it  may  well  be  his 
consolation  in  death,  that  his  country  stands  pledged  by  the  faith 
which  it  has  plighted  to  all  its  citizens,  to  protect  his  children  from 
ignorance,  barbarism  and  vice. 

I  will  now  proceed  to  ask,  sir,   whether  we  have  not  seen,  and 
whether  we  do  not   at   this  moment   see,  the  advantage  and  benefit 


MASSACHUSETTS    CONVENTION.  317 

of  giving  security  to  property  by  this  and  all  other  reasonable  and 
just  provisions  ?  The  constitution  has  stood,  on  its  present  basis, 
forty  years.  Let  me  ask,  what  state  has  been  more  distinguished 
for  wise  and  wholesome  legislation  ?  I  speak,  sir,  without  the  par- 
tiality of  a  native,  and  also  without  intending  the  compliment  of  a 
stranger  ;  and  I  ask,  what  example  have  we  had  of  better  legislation  ? 
No  violent  measures,  affecting  property,  have  been  attempted.  Stop- 
laws,  suspension  laws,  tender  laws,  all  the  tribe  of  those  arbitrary 
and  tyrannical  interferences  between  creditor  and  debtor  which, 
wheresoever  practised,  generally  end  in  the  ruin  of  both,  are  strangers 
to  our  statute  book.  An  upright  and  intelligent  judiciary  has  come 
in  aid  of  wholesome  legislation  ;  and  general  security  for  public  and 
private  rights  has  been  the  result.  I  do  not  say  that  this  is  peculiar,  I 
do  not  say  that  others  have  not  done  as  well.  It  is  enough,  that  in 
these  respects  we  shall  be  satisfied  that  we  are  not  behind  our  neigh- 
bors. No  doubt,  sir,  there  are  benefits  of  every  kind,  and  of  great 
value,  in  possessing  a  character  of  government,  both  in  legislative 
and  judicial  administration,  which  secures  well  the  rights  of  prop- 
erty ;  and  we  should  find  it  so,  by  unfortunate  experience,  should 
that  character  be  lost.  There  are  millions  of  personal  property  now 
in  this  Commonwealth,  which  are  easily  transferable,  and  would  be 
instantly  transferred  elsewhere,  if  any  doubt  existed  of  its  entire  se- 
curity. I  do  not  know  how  much  of  this  stability  of  government 
and  of  the  general  respect  for  it,  may  be  fairly  imputed  to  this  par- 
ticular mode  of  organizing  the  senate.  It  has,  no  doubt,  had  some 
effect.  It  has  shown  a  respect  for  the  rights  of  property,  and  may 
have  operated  on  opinion,  as  well  as  upon  measures.  Now  to  strike 
out  and  obliterate  it,  as  it  seems  to  me,  would  be  in  a  high  degree 
unwise  and  improper. 

As  to  the  right  of  apportioning  senators  upon  this  principle,  I  do 
not  understand  how  there  can  be  a  question  about  it.  All  govern- 
ment is  a  modification  of  general  principles  and  general  truths,  with 
a  view  to  practical  utility.  Personal  liberty,  for  instance,  is  a  clear 
right,  and  is  to  be  provided  for  ;  but  it  is  not  a  clearer  right  than 
the  right  of  property,  though  it  may  be  more  important.  It  is  there- 
fore entitled  to  protection.  But  property  is  also  to  be  protected ; 
and  when  it  is  remembered  how  great  a  portion  of  the  people  of 
this  State  possess  property,  I  cannot  understand  how  its  protection 
or  its  influence  is  hostile  to  their  rights  and  privileges. 

For  these  reasons,  sir,  I  am  in  favor  of  maintaining  that  check  in 
the  constitution  of  the  Legislature,  which  has  so  long  existed  there. 

I  understand  the  gentleman  from  Worcester  (Mr.  Lincoln),  to  be 
in  favor  of  a  check,  but  it  seems  to  me  he  would  place  it  in  the 
wrong  house.  Besides,  the  sort  of  check  he  proposes  appears  to  me 
to  be  of  a  novel  nature,  as  a  balance,  in  government.  He  proposes 
to  choose  the  senators  according  to  the  number  of  inhabitants  :  and 
to  choose  representatives,  not  according  to  that  number,  but  in  pro- 
portions greatly  unequal  in  the  town  corporations.  It  has  been  stated 
to  result    from  computation,    and  I  do  not    understand  it  is  denied, 


318  MASSACHUSETTS    CONVENTION. 

that  on  his  system  a  majority  of  the  representatives  will  be  chosen 
by  towns  not  containing  one  third  part  of  the  whole  population  of 
the  State.  I  would  beg  to  ask,  sir,  on  what  principle  this  can  stand  ; 
especially  in  the  judgment  of  those  who  regard  population  as  the 
only  just  basis  of  representation?  But,  sir,  I  have  a  preliminary 
objection  to  this  system ;  which  is,  that  it  reverses  all  our  common 
notions,  and  constitutes  the  popular  house  upon  a7iti-popular  prin- 
ciples. We  are  to  have  a  popular  senate  of  thirty-six  members,  and 
we  are  to  place  the  check  of  the  system  in  a  house  of  representatives 
of  two  hundred  and  fifty  members  !  All  money  bills  are  to  originate 
in  the  house,  yet  the  house  is  not  to  be  the  popular  branch.  It  is 
to  exceed  the  senate  seven  or  eight  to  one,  in  point  of  numbers — 
yet  the  senate  is  to  be  chosen  on  the  popular  principle,  and  the 
house  on  some  other  principle. 

It  is  necessary  here,  sir,  to  consider  the  manner  of  electing  repre- 
sentatives in  this  Commonwealth  as  heretofore  practised,  the  neces- 
sity which  exists  of  reducing  the  present  number  of  representatives, 
and  the  propositions  which  have  been  submitted  for  that  purpose. 
Representation  by  towns  or  townships,  (as  they  might  have  been 
originally  more  properly  called)  is  peculiar  to  New  England.  It 
has  existed,  however,  since  the  first  settlement  of  the  country. 
These  local  districts  are  so  small,  and  of  such  unequal  population, 
that  if  every  town  is  to  have  one  representative,  and  larger  towns  as 
many  more  as  their  population,  compared  with  the  smallest  town, 
would  numerically  entitle  them  to,  a  very  numerous  body  must 
be  the  consequence,  in  any  large  state.  Five  hundred  members,  I 
understand,  may  now  be  constitutionally  elected  to  the  house  of 
representatives  ;  the  very  statement  of  which  number  shows  the  ne- 
cessity of  reduction.  I  agree,  sir,  that  this  is  a  very  difficult  sub- 
ject. Here  are  three  hundred  towns,  all  possessing  the  right  of 
representation ;  and  representation  by  towns,  is  an  ancient  habit  of 
the  people.  For  one,  I  am  disposed  to  preserve  this  mode,  so  far 
as  may  be  practicable.  There  is  always  an  advantage  in  making 
the  revisions  which  circumstances  may  render  necessary,  in  a  man- 
ner which  does  no  violence  to  ancient  habits  and  established  rules. 
I  prefer,  therefore,  a  representation  by  towns,  even  though  it  should 
necessarily  be  somewhat  numerous,  to  a  division  of  the  State  into 
new  districts,  the  parts  of  which  might  have  little  natural  connection 
or  little  actual  intercourse  with  one  another.  But  I  ground  my 
opinion  in  this  respect  on  fitness  and  expediency,  and  the  sentiments 
of  the  people  ;  not  on  absolute  right.  The  town  corporations,  simply 
as  such,  cannot  be  said  to  have  any  right  to  representation  ;  except 
so.  far  as  the  constitution  creates  such  right.  And  this  I  apprehend 
to  be  the  fallacy  of  the  argument  of  the  hon.  member  from  Worces- 
ter. He  contends,  that  the  smallest  town  has  a  right  to  its  repre- 
sentative. This  is  true  ;  but  the  largest  town  (Boston)  has  a  right 
also  to  fifty.  These  rights  are  precisely  equal.  They  stand  on  the 
same  ground,  that  is,  on  the  provisions  of  the  existing  constitution. 
The  hon.  member  thinks  it  quite  just  to  reduce  the  right  of  the  large 


MASSACHUSETTS    CONVENTION.  319 

town  from  fifty  to  ten,  and  yet  that  there  is  no  power  to  affect  the 
right  of  the  small  town  ;  either  by  uniting  it  with  another  small 
town,  for  the  choice  of  a  representative,  or  otherwise.  But  I  do  not 
assent  to  that  opinion,  [f  it  be  right  to  take  away  half,  or  three 
fourths  of  the  representation  of  the  large  towns,  it  cannot  be  right 
to  leave  that  of  the  small  towns  undiminished.  The  report  of  the 
committee  proposes  that  these  small  towns  shall  elect  a  member 
every  other  year,  half  of  them  sending  one  year,  and  half  the  next ; 
or  else  that  two  small  towns  shall  unite  and  send  one  member  every 
year.  There  is  something  apparently  irregular  and  anomalous  in 
sending  a  member  every  other  year  ;  yet,  perhaps,  it  is  no  great  de- 
parture from  former  habits  ;  because  these  small  towns  being,  by  the 
present  constitution,  compelled  to  pay  their  own  members,  have  not, 
ordinarily,  sent  them  oftener,  on  the  average,  than  once  in  two 
years. 

The  honorable  member  from  Worcester  founds  his  argument  on 
the  right  of  town  corporations,  as  such,   to  be  represented  in  the 
Legislature.     If  he  only  means  that  right  which  the  constitution  at 
present  secures,  his  observation  is  true,  while  the  constitution  re- 
mains unaltered.     But  if  he   intend  to   say  that   such   right  exists, 
prior  to  the  constitution,  and  independent  of  it,  I  ask  whence  it  is 
derived  ?     Representation  of  the  people  has   heretofore   been  by 
towns,  because  such  a  mode  has  been  thought  convenient.     Still  it 
has  been  the  representation  of  the  people.     It  is  no  corporate  rights 
to  partake  in  the  sovereign  power  and  form  a  part  of  the  Legislature. 
To  establish  this  right,  as  a  corporate  right,  the  gentleman  has  enu- 
merated the  duties  of  the  town  corporation  ;  such  as  the  maintenance 
of  public  worship,  public  schools,  and  public  highways ;  and  insists 
that  the  performance  of  these  duties  gives  the  town  a  right  to  a 
representative  in  the  Legislature.   But  I  would  ask,  sir,  what  possible 
ground  there  is  for  this  argument  ?     The  burden  of  these  duties 
falls  not  on  any  corporate  funds  belonging  to  the  towns,  but  on  the 
people,  under  assessments  made  on  them  individually,  in  their  town 
meetings.      As  distinct  from  their  individual  inhabitants,  the  towns 
have  no  interest  in  these  affairs.     These  duties  are  imposed  by  gen- 
eral laws  ;  they  are  to  be  performed  by  the  people,  and  if  the  people 
are  represented  in  the  making  of  these  laws,  the  object  is  answered, 
whether  they  should  be  represented  in  one  mode  or  another.     But, 
further,  sir ;  are  these  municipal  duties  rendered  to  the  State,  or  are 
they  not  rather  performed  by  the  people  of  the  towns  for  their  own 
benefit  ?     The  general  treasury  derives  no  supplies  from  all  these 
contributions.     If  the  towns  maintain  religious  instruction,  it  is  for 
the  benefit  of  their  own  inhabitants.     If  they  support  schools,  it  is 
for  the  education  of  the  children  of  their  inhabitants  :  and  if  they 
maintain  roads  and  bridges,  it  is  also  for  their  own  convenience. 
And  therefore,  sir,  although  I  repeat  that  for  reasons  of  expediency, 
I  am  in  favor  of  maintaining  town  representation,  as  far  as  it  can  be 
done  with  a  proper  regard  to  equality  of  representation,  I  entirely 
disagree  to  the   notion,  that  every  town  has  a  right,  which  an  al- 


320  MASSACHUSETTS    CONVENTION. 

teration  of  the  constitution  cannot  divest,  if  the  general  good  require 
such  alteration,  to  have  a  representative  in  the  Legislature.  The 
honorable  member  has  declared  that  we  are  about  to  disfranchise 
corporations,  and  destroy  chartered  rights.  He  pronounces  this  sys- 
tem of  representation  an  outrage,  and  declares  that  we  are  forging 
chains  and  fetters  for  the  people  of  Massachusetts.  "  Chains  and 
fetters!"  This  Convention  of  delegates,  chosen  by  the  people, 
within  this  month,  and  going  back  to  the  people,  divested  of  all 
power  within  another  month,  yet  occupying  their  span  of  time  here, 
in  forging  chains  and  fetters  for  themselves  and  their  constituents ! 
i;  Chains  and  fetters!"  A  popular  assembly  of  four  hundred  men, 
by  combining  to  fabricate  these  manacles  for  the  people,  and  no- 
body, but  the  honorable  member  from  Worcester,  with  sagacity 
enough  to  detect  the  horrible  conspiracy,  or  honesty  enough  to  dis- 
close it  !  "  Chains  and  fetters  !"  An  assembly  most  variously  com- 
posed ;  men  of  all  professions,  and  all  parties ;  of  different  ages,  habits 
and  associations — all  freely  and  recently  chosen  by  their  towns  and 
districts ;  yet  this  assembly,  in  one  short  month,  contriving  to  fetter 
and  enslave  itself  and  its  constituents!  Sir,  there  are  some  things 
too  extravagant  for  the  ornament  and  decoration  of  oratory ;  some 
things  too  excessive,  even  for  the  fictions  of  poetry ;  and  I  am  per- 
suaded that  a  little  reflection  would  satisfy  the  honorable  member, 
that  when  he  speaks  of  this  assembly  as  committing  outrages  on  the 
rights  of  the  people,  and  as  forging  chains  and  fetters  for  their  sub- 
jugation, he  does  as  great  injustice  to  his  own  character  as  a  cor- 
rect and  manly  debater,  as  he  does  to  the  motives  and  the  intelli- 
gence of  this  body. 

I  do  not  doubt,  sir,  that  some  inequality  exists  in  the  mode  of 
representatives  proposed  by  the  committee.  A  precise  and  exact 
equality  is  not  attainable,  in  any  mode.  Look  to  fhe  gentleman's 
own  proposition.  By  that,  Essex,  with  twenty  thousand  inhabitants 
more  than  Worcester,  would  have  twenty  representatives  less.  Suf- 
folk, which  according  to  numbers  would  be  entitled  to  twenty, 
would  have,  if  I  mistake  not,  eight  or  nine  only.  Whatever  else, 
sir,  this  proposition  may  be  a  specimen  of,  it  is  hardly  a  specimen  of 
equality.  As  to  the  house  of  representatives,  my  view  of  the  sub- 
ject is  this.  Under  the  present  constitution  the  towns  have  all  a 
right  to  send  representatives  to  the  Legislature,  in  a  certain  fixed  pro- 
portion to  their  numbers.  It  has  been  found,  that  the  full  exercise 
of  this  right  fills  the  house  of  representatives  with  -too  numerous  a 
body.  What  then  is  to  be  done  ?  Why,  sir,  the  delegates  of  the 
towns  are  here  assembled,  to  agree,  mutually,  on  some  reasonable 
mode  of  reduction.  Now,  sir,  it  is  not  for  one  party  to  stand  sternly 
on  its  right,  and  demand  all  the  concession  from  another.  As  to 
risht,  all  are  equal.  The  right  which  Hull  possesses  to  send  one, 
isthe  same  as  the  right  of  Boston  to  send  fifty.  Mutual  concession 
and  accommodation,  therefore,  can  alone  accomplish  the  purpose  of 
our  meeting.  If  Boston  consents,  instead  of  fifty,  to  send  but  twelve 
or  fifteen,  the  small  towns  must  consent,  either  to  be  united  in  the 


MASSACHUSETTS    CONVENTION.  321 

choice  of  their  representatives  with  other  small  towns,  or  to  send 
a  representative  less  frequently  than  every  year  ;  or  to  have  an 
option  to  do  one  or  the  other  of  these,  hereafter,  as  shall  be  found 
most  convenient.  This  is  what  the  report  of  the  committee  pro- 
poses, and,  as  far  as  we  have  yet  learned,  a  great  majority  of  the 
delegates  from  small  towns  approve  the  plan.  I  am  willing,  there- 
fore, to  vote  for  this  part  of  the  report  of  the  committee  ;  thinking  it 
as  just  and  fair  a  representation,  and  as  much  reduced  in  point  of 
numbers,  as  can  be  reasonably  hoped  for,  without  giving  up  entirely 
the  system  of  representation  by  towns.  It  is  to  be  considered  also, 
that  according  to  the  report  of  the  committee,  the  pay  of  the  mem- 
bers is  to  be  out  of  the  public  treasury.  Every  body  must  see  how 
this  will  operate  on  the  large  towns.  Boston,  for  example,  with  its 
twelve  or  fourteen  members,  will  pay  for  fifty.  Be  it  so  ;  it  is  in- 
cident to  its  property,  and  not  at  all  an  injustice,  if  proper  weight 
be  given  to  that  property,  and  proper  provision  be  made  for  its 
security. 

To  recur  again  to  the  subject  of  the  senate — there  is  one  remark, 
made  by  gentlemen  on  the  other  side,  of  which  I  wish  to  take 
notice.  It  is  said,  that  if  the  principle  of  representation  in  the 
senate  by  property  be  correct,  it  ought  to  be  carried  through ; 
whereas  it  is  limited  and  restrained  by  a  provision  that  no  district 
shall  be  entitled  to  more  than  six  senators.  But  this  is  a  prohibition 
on  the  making  of  great  districts,  generally  ;  not  merely  a  limitation 
of  the  effect  of  the  property  principle.  It  prevents  great  districts 
from  being  made  where  the  valuation  is  small,  as  well  as  where  it  is 
large.  Were  it  not  for  this,  or  some  similar  prohibition,  Worcester 
and  Hampshire  might  have  been  joined,  under  the  present  constitu- 
tion, and  have  sent  perhaps  ten  or  twelve  senators.  The  limitation 
is  a  general  one,  introduced  for  general  purposes  ;  and  if,  in  a  par- 
ticular instance,  it  bears  hard  on  any  county,  this  should  be  regarded 
as  an  evil  incident  to  a  good  and  salutary  rule,  and  ought  to  be,  as 
I  doubt  not  it  will  be,  quietly  borne. 

I  forbear,  Mr.  Chairman,  to  take  notice  of  many  minor  objections 
to  the  report  of  the  committee.  The  defence  of  that  report,  es- 
pecially in  its  details,  properly  belongs  to  other  and  abler  hands. 
My  purpose  in  addressing  you  was  simply  to  consider  the  propriety 
of  providing,  in  one  branch  of  the  Legislature,  a  real  check  upon  the 
other.  And  as  I  look  upon  that  principle  to  be  of  the  highest  prac- 
tical importance,  and  as  it  has  seemed  to  me  that  the  doctrines  con- 
tended for  would  go  to  subvert  it,  I  hope  I  may  be  pardoned  tor 
detaining  the  committee  so  long. 

Mr.  Dearborn  rose  in  consequence  of  the  allusions  which  had 
been  made  to  his  remarks  by  several  gentlemen  in  the  course  of  the 
debate.  He  thought  he  had  been  misapprehended  in  what  he  had 
said  of  the  governments  of  Athens  and  Rome,  and  explained  in  re- 
lation to  those  subjects.  In  allusion  to  the  remarks  of  the  gentle- 
man from  Boston,  who  had  last  spoken,  he  said  he  agreed  perfectly 
with  him  in  the  lucid  view  he  had  given  of  the  effect  of  property 
41 


322  MASSACHUSETTS    CONVENTION. 

on  government,  and  in  all  his  views,  except  in  relation  to  the  basis 
of  representation  in  the  senate.  In  reply  to  Mr.  Prescott,  who 
spoke  yesterday,  he  said,  that  Mr.  Jefferson,  who  had  been  quoted 
as  an  authority,  had,  after  the  publication  of  his  Notes  on  Virginia, 
in  some  measure  changed  his  opinion  on  the  subject  in  question, 
and  Mr.  D.  stated  the  principles  on  which  Mr.  Jefferson  had  drawn 
up  the  model  of  a  constitution  for  Virginia. 

Mr.  Martin  of  Marblehead  spoke  in  favor  of  the  resolution.  He 
would  not  consent  to  the  compromise  proposed  by  the  resolutions  of 
the  select  committee.  He  had  no  idea  of  bartering  away  the  rights 
of  his  constituents,  to  have  them  ask  him  on  his  return  home,  Was 
this  what  our  fathers  and  brothers  fought  for  in  the  revolution  ?  was 
this  what  your  elder  brother  died  for  ?  He  did  not  like  a  compro- 
mise, where  one  party  received  nothing  in  return  for  what  it  gave  ; 
and  this  would  be  the  case  with  the  county  of  Essex,  according  to 
the  resolutions  of  the  committee. 

The  question  on  the  acceptance  of  the  resolution  was  then  taken, 
and  decided  in  the  negative — 164  to  247. 

The  committee  then  rose,  reported  their  disagreement  to  the  res- 
olution, and  had  leave  to  sit  again  on  the  other  resolution. 

The  House  adjourned. 


Saturday,  December  16. 

The  House  met  at  9  o'clock,  and  the  journal  of  yesterday  was 
read. 

On  motion  of  Mr.  Varnum  of  Dracut,  the  report  of  the  standing 
committee  on  the  declaration  of  rights,  presented  last  Wednesday, 
was  referred  to  a  committee  of  the  whole  and  asigned  for  Tuesday 
next  at  9  o'clock. 

Mr.  Prescott  of  Boston  offered  the  following  resolutions,  viz.: 

Resolved,  That  it  is  proper  and  expedient  so  to  alter  the  constitution,  as  to  provide, 
that  when  any  two  towns  containing  less  than  1200  inhabitants,  or  any  towns  now 
united,  or  town  and  district  now  united,  for  the  purpose  of  choosing  a  representa- 
tive, and  another  town  containing  less  than  1200  inhabitants,  shall  prefer  being 
united  for  the  purpose  of  electing  a  representative  together,  to  choosing  one  every 
other  year  separately,  and  shall  apply  to  the  Legislature  to  unite  them  for  that  pur- 
pose, the  Legislature  shall  unite  them  accordingly,  and  the  meetings  for  the  election 
of  their  representatives  shall  be  held  in  such  towns  alternately,  beginning  with  the 
most  populous,  unless  they  agree  to  hold  them  otherwise,  and  such  towns  shall  con- 
tinue so  united,  until  one  of  them  shall  increase  to  1200  inhabitants. 

Resolved,  That  it  is  proper  and  expedient  so  far  to  alter  the  Constitution,  as  to 
provide  that  each  of  the  small  towns,  and  of  the  towns  and  districts  now  united  for 
the  purpose  of  choosing  a  representative,  which  contain  less  than  1200  inhabitants, 
and  which  shall  not  hereafter  be  united  to  another  town,  shall  be  entitled  to  elect  a 
representative  every  year  in  which  a  valuation  of  estates  within  the  Commonwealth 
shall  be  settled,  provided  that  the  Legislature  of  that  year,  shall  never  appoint  the 
year  in  which  the  next  valuation  shall  be  made. 

These  resolutions  were  referred  to  the  committee  of  the  whole 
on  the  senate,  &c. 

On  motion  of  Mr.    Prescott  the  House  went   into  committee  of 


MASSACHUSETTS    CONVENTION.  323 

the  whole  on  the  unfinished  business  of  yesterday  ;  Mr.  Q,uinct  in 
the  chair. 

The  second,  third  and  fourth  resolutions  of  Mr.  Dearborn  were 
taken  up  successively  and  negatived,  without  any  discussion  on  the 
merits,  being  considered  as  depending  on  his  first  resolution,  which 
was  negatived  yesterday. 

The  committee  then  proceeded  to  the  consideration  of  the  fourth 
resolution  reported  by  the  select  committee,  which  had  been  passed 
over,  and  was  as  follows,  viz.: 

Resolved,  That  it  is  proper  and  expedient  so  to  alter  and  amend  the  constitution 
as  to  provide,  that  the  several  counties  in  this  Commonwealth  shall  be  districts  for 
the  choice  of  senators,  until  the  General  Court  shall  alter  the  same — excepting  that 
the  counties  of  Hampshire,  Hampden  and  Franklin,  shall  form  one  district  for  that 
purpose — and  also  that  the  counties  of  Barnstable,  Nantucket  and  Dukes  county, 
shall  together  form  a  district  for  the  purpose,  and  that  they  shall  be  entitled  to  elect 
the  following  number  of  senators,  viz.: — Suffolk,  six — Essex,  six — Middlesex,  four — 
Worcester,  five — Hampshire,  Hampden  and  Franklin,  four — Berkshire,  two — Ply- 
mouth, two — Bristol,  two — Norfolk,  three  —  Barnstable,  Nantucket  and  Dukes 
county,  two. 

Mr.  Dana  of  Groton  inquired  whether  Hampshire,  Hampden  and 
Franklin  now  form  one  district. 

Mr.  Prescott  replied  that  they  do. 

Mr.  Lawrence  of  Groton  said  the  select  committee  did  not  think 
proper  to  interfere  with  the  business  of  the  Legislature  in  regard  to 
a  division  of  this  district,  as  next  year  there  was  to  be  a  new  valua- 
tion. The  five  senators  which  were  added  to  thirty-one,  the  num- 
ber which  belonged  to  the  counties  in  Massachusetts  at  the  time  of 
the  separation  of  Maine,  were  apportioned  among  those  counties 
which  had  the  greatest  fractions  in  the  valuation.  On  another  point 
he  observed,  that  some  gentlemen  yesterday  supposed  there  was  no 
limitation  of  the  several  counties  to  six  senators.  This  limitation 
was  already  in  the  constitution,  and  as  the  committee  did  not  pro- 
pose to  make  any  alteration  in  this  respect,  it  was  unnecessary  to 
include  it  in  their  report. 

Mr.  Blake  of  Boston  wished  some  gentleman  of  the  select  com- 
mittee to  explain  what  was  meant  by  the  clause  "until  the  General 
Court  shall  alter  the  same."  He  had  very  little  doubt  on  the  sub- 
ject himself,  but  some  gentlemen  thought  these  words  gave  power 
to  the  Legislature  to  form  the  districts  so  that  some  should  have 
more  than  six  senators. 

Mr.  Prescott  said  the  intention  of  the  committee  was  to  give 
the  Legislature  power  to  make  new  districts,  but  the  provision  in 
the  constitution  limiting  a  district  to  six  senators,  remained  entire. 
If  the  taxable  property  varied  in  the  several  counties,  the  Legisla- 
ture might  apportion  the  senators  anew,  conforming  to  this  limita- 
tion and  not  dividing  any  county  for  this  purpose,  as  had  been  be- 
fore provided.  The  resolution  followed  the  phraseology  of  the  con- 
stitution. 

Mr.  Parker  of  Boston  wished  the  resolution  to  be  made  more 
explicit,  as  one   of  the    principal   difficulties  had   arisen   from  the 


324  MASSACHUSETTS     CONVENTION. 

clashing  of  the  two  provisions  in  the  constitution.  It  was  as  much 
a  violation  of  the  constitution  to  give  other  counties  more  senators 
than  they  were  entitled  to  by  their  valuation  as  it  would  be  to  give 
Suffolk  more  than  six.  He  should  wish  a  provision  might  be  made, 
that  the  surplus  valuation  of  any  county  should  be  apportioned 
among  the  other  counties  not  entitled  to  choose  six. 

Mr.  Dana  thought  it  would  be  better  to  postpone  the  considera- 
tion of  this  resolution,  until  it  should  be  settled  in  Convention 
what  should  be  the  number  of  senators ;  because  if  the  number 
thirty-six  should  not  be  adopted,  a  new  apportionment  would  be 
necessary.  He  objected  to  restricting  the  Legislature  from  making 
two  or  more  districts  out  of  one  county.  He  should  not,  however, 
propose  any  specific  amendment. 

Mr.  Freeman  of  Sandwich  moved  to  amend  the  resolution,  so 
that  the  several  counties  should  be  districts,  excepting  that  Nan- 
tucket and  Dukes  should  form  one,  for  the  choice  of  senators,  to  be 
apportioned  according  to  population,  and  none  but  freeholders, 
should  be  entitled  to  vote  for  senators  and  none  should  be  eligible 
but  such  as  were  seized  of  a  freehold  of  the  value  of  one  thousand 
dollars.  Mr.  F.  was  going  on  to  state  his  reasons,  but  was  called 
to  order,  as  the  principle  of  apportioning  on  population  had  been 
once  rejected  by  the  committee. 

The  Chair  decided  that  the  gentleman  was  not  in  order,  and  upon 
an  appeal  to  the  committee  the  decision  was  confirmed. 

Mr.  Parker  of  Boston  moved  to  add  to  the  resolution — "And  if 
it  shall  so  happen  that  any  district  shall,  according  to  its  valuation, 
be  entitled  to  a  greater  number  than  six  senators,  the  excess  shall 
be  apportioned  upon  any  other  district  or  districts,  not  entitled  to 
six  senators,  in  proportion  to  the  public  taxes  paid  by  such  district 
or  districts." 

After  some  slight  discussion,  the  amendment  was  withdrawn  by 
the  mover. 

The  question  being  stated  on  the  adoption  of  the  resolution — 
Mr.  Dana  said  he  had  expected  the  report  of  the  committee 
would  be  so  altered,  that  the  senate  should  hereafter  consist  of  forty 
members.  But  the  question  could  not  be  now  arrived  at — it  had 
been  already  settled  in  committee  of  the  whole,  that  the  number 
should  be  thirty-six.  If  no  amendment  was  made  in  the  constitu- 
tion, in  this  respect,  the  number  would  be  forty.  It  would,  there- 
fore, be  improper  to  accept  this  resolution,  which  makes  an  appor- 
tionment of  thirty-six  only.  He  should  move,  therefore,  that  the 
resolution  should  be  passed  over. 

Mr.  Wilde  opposed  the  motion.  He  saw  no  advantage  attend- 
ing it.  We  had  agreed  to  the  resolution  fixing  the  number  at  thir- 
ty-six, and  if  that  decision  was  not  altered,  this  resolution  would  be 
necessary.  If  that  was  changed  in  Convention,  this  might  be  so 
amended  as  to  correspond  with  that  decision. 

Mr.  Banister  of  Newburyport  also  opposed  the  motion,  not  be- 
cause he  was  opposed   to   the  proposition  of  the  gentleman  from 


MASSACHUSETTS    CONVENTION.  325 

Groton,  but  because  he  thought  it  would  tend  to  embarrass  the  pro- 
ceedings. If  the  motion  to  fix  the  number  of  senators  at  forty- 
should  prevail  in  Convention,  there  would  be  no  difficulty  in  after- 
wards making  a  corresponding  alteration  in  this  resolution. 

Mr.  Dana  withdrew  his  motion. 

The  question  recurred  on  the  resolution,  which  was  agreed  to — 
210  to  118. 

The  resolution  offered  by  Mr.  Prescott,  authorizing  the  Legis- 
lature to  unite  towns  entitled,  according  to  the  report  of  the  select 
committee,  to  choose  a  representative  only  every  other  year,  when 
they  should  request  it,  with  authority  to  elect  a  representative  every 
year,  was  then  taken  up. 

Mr.  Prescott  said  it  was  provided,  by  one  of  the  resolutions  of 
the  select  committee,  that  the  small  towns  containing  less  than  1200 
inhabitants,  should  be  divided  into  two  classes,  and  entitled  to  choose 
representatives  alternately.  It  had  been  suggested  that  there  might 
be  many  towns  so  situated,  that  they  would  prefer  being  united 
together,  Avith  authority  to  choose  a  representative  every  year.  He 
saw  no  objection  to  giving  them  the  choice  of  such  an  arrange- 
ment. The  effect  on  the  house  would  be  the  same,  if  fchey  chose 
jointly,  as  if  they  chose  alternately.  As,  therefore,  it  could  be  no  in- 
convenience to  the  public,  and  as  it  might  make  the  system  pro- 
posed more  acceptable  to  the  people  of  some  towns,  he  had  been 
induced  to  offer  the  resolution. 

Mr.  Ward  moved  to  amend  the  resolution,  by  adding  to  it  the 
words,  "  or  until  it  shall  be  otherwise  ordered  by  the  Legislature." 
Mr.  W.  said  he  thought  that  very  few  towns  would  agree  to  unite, 
if,  when  the  union  was  once  formed,  it  was  necessary  that  it  should 
be  perpetual.  Circumstances  might  change,  or  jealousies  might 
spring  up  between  the  towns,  so  as  to  make  it  extremely  difficult 
for  them  to  act  in  concert. 

Mr.  Martin  hoped  the  motion  would  not  prevail.  He  thought 
it  would  be  very  inconvenient  to  let  the  Legislature  have  the  power 
to  separate  the  towns  whenever  one  of  them  should  apply  for  it  ■ 
there  would  be  perpetual  applications  for  that,  purpose. 

Mr.  Prescott  had  the  happiness  to  concur  entirely  with  the  gen- 
tleman from  Marblehead. 

Mr.  Ward  and  Mr.  Hoar  of  Concord  supported  the  amend- 
ment. 

Mr.  Hoyt  of  Deerfield  inquired  whether  the  amendment  au- 
thorized the  Legislature  to  act  without  a  petition  from  the  towns 
united. 

Mr.  Ward  said  he  was  willing  to  amend  his  amendment,  by 
adding,  "  upon  application  of  either  of  the  towns,"  though  he  consid- 
ered it  unnecessary. 

Mr.  Martin  said,  as  this  had  been  compared  to  marriage,  there 
should  be  the  consent  of  both  parties. 

The  Chairman  said  the  gentleman  was  mistaken.  There  must 
be  a  mutual  consent  to  the  union,  but  not  to  the  dissolution. 

This  amendment  to  the  amendment  was  agreed  to. 


326  MASSACHUSETTS    CONVENTION. 

Mr.  Sibley  of  Sutton  suggested  that  there  was  an  inaccuracy  in 
the  resolution.  It  should  be,  that  each  of  the  towns  to  be  united 
should  have  less  than  1200  inhabitants. 

Mr.  Pre scott  assented,  and  wished  the  resolution  might  be  al- 
tered accordingly. 

Mr.  Newhall  of  Lynnfield  wished  that  it  might  be  imperative 
on  the  Legislature  to  disunite  the  towns  upon  the  application  of 
either  of  the  towns. 

Mr.  Webster  of  Boston  objected ;  for  then  a  town,  when  it  had 
the  advantage  in  respect  to  sending  a  representative,  might  apply  to 
be  separated. 

Mr.  Hoyt  wished  it  might  be  at  the  discretion  of  the  Legislature 
to  unite  the  towns,  and  moved  to  substitute  "may"  for  "shall." 
It  would  be  unreasonable  to  unite  a  town  where  the  minority  op- 
posed to  the  union  was  very  large. 

Mr.  Freeman  of  Sandwich  said  if  there  was  a  majority  in  both 
towns  in  favor  of  a  union,  the  Legislature  ought  to  unite  them. 

The  question  was  taken  for  substituting  "may"  for  "shall," 
and  decided  in  the  affirmative — 130  to  112. 

Mr.  Flint  of  Reading  was  afraid  that  if  the  power  was  given  to 
the  Legislature  to  unite  and  disunite  at  their  discretion,  it  would 
be  made  to  serve  party  purposes.  He  believed  that  it  would  pro- 
duce more  quiet  and  satisfaction  to  let  each  corporation  exercise  its 
own  privileges  separately.  If  ever  the  State  should  be  placed  in 
such  an  unfortunate  situation  as  it  had  been  in  regard  to  political 
excitement,  this  discretion  of  the  Legislature  would  most  certainly 
be  abused.  For  this  reason  he  did  not  exactly  like  the  resolution 
before  the  committee. 

Mr.  J.  Welles  of  Boston  was  pleased  with  the  intention  of  the 
resolution  generally,  but  thought  the  separation  should  be  at  the 
application  of  both,  instead  of  either  of  the  united  towns.  He 
therefore  moved  to  strike  out  "  either  "  in  the  amendment,  and  in- 
sert "both." 

Mr.  Varnum  and  Mr.  Webster  said  this  could  not  be  done,  as 
the  amendment  had  been  adopted. 

Mr.  Welles  then  moved  to  reconsider  the  vote  adopting  the 
amendment. 

Mr.  Ward  opposed  the  reconsideration.  We  were  adopting  a 
new  system.  Some  of  the  towns  might  think  they  were  disfran- 
chised, if  they  were  allowed  to  send  a  representative  only  every 
other  year.  Every  facility  should  therefore  be  afforded  to  enable 
them  to  exercise  their  rights  in  the  way  they  should  prefer  ;  and  to 
save  the  rights  and  privileges  of  the  small  towns,  he  had  intro- 
duced the  amendment,  giving  the  Legislature  power  to  dissolve  the 
union  between  two  towns,  if  it  should  be  found  unprofitable.  Now 
gentlemen  thought  the  separation  should  be  on  the  application  of 
both  towns.  He  thought  it  unjust  to  require  this,  because  any 
town,  which  derived  advantage  from  the  connection,  would  of 
course  oppose  the  separation. 


MASSACHUSETTS    CONVENTION.  327 

Mr.  Crandon  of  Rochester  inquired  whether  it  was  intended  to 
let  the  towns  be  joined  and  disjoined,  time  after  time  ;  if  so,  the 
Legislature  would  have  business  enough  on  their  hands. 

Mr.  Ward  said  it  was  not  to  be  expected,  that  the  Legislature 
would  permit  them  to  play  at  fast  and  loose  without  good  reason. 
The  Legislature  would  treat  frivolous  applications  in  a  summary 
manner. 

Mr.  Baldwin  of  Boston  opposed  the  reconsideration. 

Mr.  Lincoln  of  Worcester  spoke  in  favor  of  reconsideration.  The 
Legislature  should  not  have  discretion  in  the  case  ;  they  would 
abuse  it  for  party  purposes.  Make  the  provision  imperative,  and 
the  towns  will  deliberate  before  they  covet  a  connection.  If, 
upon  full  consideration  of  the  mutual  advantages  and  disadvan- 
tages to  arise,  the  towns  choose  to  enter  into  a  union,  it  ought 
to  be  for  better  or  for  worse.  He  should  be  opposed  to  a  separation 
upon  the  application  of  both  parties.  If  the  Legislature,  upon  such 
an  application  as  this,  have  any  discretion,  they  will  always  look  to 
the  political  effect. 

Mr.  Webster  said  the  gentleman  had  anticipated  him,  and  more 
than  anticipated  him.  He  was  of  opinion  that  the  Legislature  should 
have  a  discretion  with  respect  to  uniting  towns,  but  if  a  connection 
should  be  formed,  it  ought  to  continue  forever  ;  unless  one  of  the 
towns  should  attain  to  1200  inhabitants,  when  it  might  be  said  to 
have  come  of  age  and  would  of  course  be  free  by  the  constitution  as 
proposed  to  be  amended. 

Mr.  Ward  said  the  remarks  of  gentlemen  were  founded  upon 
analogies  which  did  not  exist.  There  was  no  resemblance  between 
marriage  and  the  union  of  towns.  Marriage  is  entered  into  by  the 
act  of  the  parties  themselves,  and  terminates  by  the  death  of  one  of 
them.  In  towns  there  would  be  a  succession  of  persons  who  had 
ho  agency  in  the  question  of  uniting.  Gentlemen  ought  not  to  go 
upon  the  supposition  of  a  time-serving  policy  of  the  Legislature  ; 
they  should  rather  go  upon  the  benefit  small  towns  might 
derive  from  this  connection  and  trust  to  the  magnanimity  of  the 
Legislature. 

Mr.  Blake  of  Boston  said  that  as  to  a  union,  there  would  be  a 
mutual  consent  of  course  ;  but  to  require  the  consent  of  both  towns 
to  a  dissolution,  was  making  a  dissolution  impossible. 

Mr.  Flint  said  he  had  an  objection  to  the  resolution  in  addition 
to  the  one  he  had  before  stated.  The  committee  had  adopted  a 
resolution  that  the  governor,  lieutenant  governor,  senators  and  repre- 
sentatives should  all  be  chosen  on  the  second  Monday  of  November. 
He  asked  how  the  inhabitants  of  two  towns  could,  on  the  same  day, 
meet  in  their  respective  towns,  for  the  choice  of  governor,  lieutenant 
governor  and  senators,  and  in  one  of  the  towns  for  the  choice  of  a 
representative. 

The  Chairman  said  the  gentleman  was  not  in  order,  as  the  ques- 
tion was  not  upon  the  resolution,  but  upon  the  reconsideration  of 
the  vote  adopting  an  amendment. 


328  MASSACHUSETTS    CONVENTION. 

The  question  for  reconsidering  was  then  taken  and  determined  in 
the  affirmative — 123  to  104. 

Mr.  Lincoln  moved  to  amend  the  amendment  by  striking  out 
"  of  either." 

Mr.  Blake  and  Mr.  Foster  of  Littleton  opposed  the  motion.  Mr. 
F.  begged  gentlemen  from  large  towns  to  consider  what  would  be 
the  situation  of  small  towns.  The  large  town  would  not  consent 
to  the  separation  of  the  small  one,  any  more  than  Boston  to  lose  a 
senator. 

Messrs.  Hoyt,  Welles  and  Hubbard  expressed  themselves  in  favor 
of  a  connection  of  the  towns  for  a  limited  time,  as  for  ten  years  or 
until  a  new  census  should  be  taken. 

Mr.  Sullivan  of  Boston  hoped  the  motion  of  the  gentleman  from 
Worcester  would  prevail.  He  would  leave  as  little  to  the  discretion 
of  the  Legislature  as  possible,  as  they  would  abuse  their  discretion 
for  party  purposes.  He  would  make  it  difficult  for  the  towns  to 
unite,  and  difficult  for  them  to  separate  when  united. 

Mr.  Sturgis  of  Boston  did  not  see  how  the  Legislature  could 
abuse  their  discretion,  as  there  would  be  the  same  number  of  repre- 
sentatives elected,  whether  one  was  chosen  every  year  by  the  towns 
united,  or  by  the  separate  towns  alternately  every  other  year. 

Mr.  S.  A.  Wells  of  Boston  thought  a  majority  of  both  towns 
collectively  should  be  required,  otherwise  the  small  town  might 
control  the  larger,  although  the  larger  should  have  more  than  1200 
inhabitants. 

The  Chairman  said  the  gentleman  mistook.  When  the 
inhabitants  of  one  of  the  towns  amount  to  1200,  it  separates,  of 
course. 

The  question  was  taken  on  Mr.  Lincoln's  motion  and  lost. 
Mr.  Parker  said  he  was  much  struck  by  the  remark  made  by  the 
gentleman  from  Reading  (Mr.  Flint).  It  often  happened  that  a 
man  of  good  common  sense  and  strong  natural  intellect,  discovers 
what  has  escaped  the  vigilance  of  men  of  technical  accuracy.  He 
said  it  would  be  unreasonable  to  require  electors  to  perform  the 
double  duty  of  voting  in  their  own  town,  and  in  another,  on  the 
same  day ;  he  had  therefore  prepared  an  amendment  to  remove  the 
difficulty. 

The  Chairman  said  the  gentleman  was  out  of  order,  the  question 
not  being  upon  the  resolution,  but  the  amendment. 

Mr.  Hubbard  moved  to  amend  the  amendment  of  Mr.  Ward,  by 
adding,  "Provided  however  that  no  such  application  shall  be  sus- 
tained by  the  Legislature  more  than  once  in  ten  years,  unless  both 
towns  unite  in  such  application,  except  in  the  year  succeeding  the 
taking  of  the  census." 

Mr.  Paige  of  Hardwick  moved  to  pass  over  this  resolution  and 
take  up  the  other  one  introduced  by  Mr.  Prescott.  The  small 
towns  would  prefer  to  have  the  other  acted  upon  first,  because  if  the 
present  resolution  were  adopted,  it  might  be  thought  that  the  other 
was  unnecessary. 


MASSACHUSETTS    CONVENTION.  329 

Mr.  Paige's  motion  was  negatived — 107  to  116. 

Mr.  Hubbard's  amendment  was  adopted — 160  to  62. 

The  question  was  now  upon  the  amendment  as  amended. 

Mr.  Nichols  of  South  Reading  opposed  it.  He  said  there  never 
would  be  any  application  except  for  party  purposes.  The  large  town 
might  be  in  the  power  of  the  smaller,  on  account  of  unanimity  in 
the  small  town  and  division  in  political  sentiment  in  the  large  one, 
and  thus  a  permanent  majority  would  be  secured.  He  belonged  to 
a  small  town  and  did  not  wish  for  this  privilege. 

On  motion  of  Mr.  Lincoln  the  committee  rose,  reported  progress, 
and  had  leave  to  sit  again. 

On  motion  of  Mr.  Lincoln,  it  was  ordered  that  the  resolution, 
with  the  amendments,  should  be  printed. 

Leave  of  absence  was  given  to  Mr.  Clapp  of  Easthampton  on 
account  of  sickness  in  his  family. 

Ordered,  that  when  the  House  adjourns,  it  shall  adjourn  to 
Monday,  at  10  o'clock. 

The  House  then  adjourned. 


Monday,  December    18. 

The  House  met  at  10  o'clock  and  the  journal  of  Saturday  was  read. 

On  motion  of  Mr.  Varnum  of  Dracut,  the  second  report  of  the 
standing  committee  on  the  senate,  &c,  relating  to  elections,  as  re- 
ported by  the  committee  of  the  whole  on  the  senate,  &c,  was  taken 
up  in  conformity  to  an  order  passed  on  Wednesday  last,  and  the  two 
first  resolutions,  which  propose  to  alter  the  constitution  so  as  to  pro- 
vide that  the  meetings  in  towns  and  districts  for  the  election  of 
governor  and  lieutenant  governor,  senators  and  representatives,  shall 
be  on  the  same  day  in  each  year,  viz.,  the  second  Monday  in  Novem- 
ber, and  may  be  continued  from  day  to  day  not  exceeding  three  days, 
for  the  purpose  of  choosing  representatives,  were  read  a  first  time, 
and  to-morrow  at  9  o'clock,  was  assigned  for  a  second  reading. 

The  third  and  fourth  resolutions,  that  it  is  not  expedient  to  provide 
in  the  constitution  that  the  meetings  for  the  election  of  electors  of 
president  and  vice  president  of  the  United  States  and  representatives 
in  congress,  and  for  the  election  of  town  or  county  officers,  shall  be 
on  the  same  day  as  those  for  the  election  of  governor,  lieutenant 
governor,  senators  and  representatives  in  the  Legislature  of  this 
Commonwealth,  were  read  and  agreed  to ;  it  not  being  necessary  to 
give  them  a  second  reading,  as  they  propose  no  alteration  in  the 
constitution. 

The  House  were  proceeding  to  read,  the  first  time,  the  report  of 
the  standing  committee  on  the  subject  of  oaths,  subscriptions,  &c., 
as  reported  by  the  committee  of  the  whole,  to  whom  it  had  been 
referred. 

Mr.  Tuckerman  of  Chelsea  said,  if  it  was  in  order,  he  should 
move  a  resolution  proposing  that  the  governor,  lieutenant  governor, 
42 


330  MASSACHUSETTS    CONVENTION. 

senators  and  representatives  should,  before  they  entered  upon  the 
duties  of  their  office,  make  the  declaration, 

"I,  A.  B.,  do  believe  in  the  truth  of  the  Christian  religion." 

Mr.  Webster  said  that  as  there  were  to  be  but  two  readings  of  the 
resolutions  reported  by  the  committees  of  the  whole,  the  second 
should  be  after  they  were  engrossed.  It  would  therefore  be  proper 
to  have  amendments  made  at  the  first  reading.  He  wished  the 
reports  already  made,  might  lie  on  the  table,  until  other  subjects  had 
passed  through  a  committee  of  the  whole. 

Mr.  Hubbard  of  Boston  moved  that  the  reports  lie  on  the  table. 
The  motion  was  agreed  to. 

Leave  of  absence  was  granted  to  Mr.  Adams  of  Q,uincy  on  account 
of  indisposition,  and  to  Mr.  Baylies  of  Wellington  on  account  of  ill 
health. 

On  motion  of  Mr.  Prescott  of  Boston  the  House  went  into  com- 
mittee of  the  whole  on  the  unfinished  business  of  Saturday,  Mr. 
Q,uincy  in  the  chair. 

The  question  before  the  committee  was  upon  Mr.  Ward's  amend- 
ment, as  amended,  of  the  resolution  introduced  by  Mr.  Prescott, 
providing  for  uniting  towns,  containing  each  less  than  1200 
inhabitants. 

Mr.  Webster  wished  that  gentlemen  representing  small  towns 
would  express  their  opinions  in  respect  to  the  desire  of  the  small 
towns  to  be  united,  as  his  vote  would  be  governed  by  the  sense  of 
the  small  towns. 

Messrs.  Gray  of  Somerset,  Fox  of  Berkley,  Longley  of  Bolton, 
Boylston  of  Princeton,  Bangs  of  Hawley,  and  one  other  member 
from  a  small  town,  thought  the  small  towns  would  not  avail 
themselves  of  the  liberty  of  uniting. 

Messrs.  Baldwin  of  Egremont  and  Lamson  of  Hamilton,  thought 
the  small  towns  might  like  to  have  the  privilege  of  uniting  and 
separating  just  as  they  could  agree,  without  any  act  of  the  Legislature. 

Mr.  Doane  of  Cohasset  said  if  the  other  resolution,  for  enabling 
every  town  to  be  represented  on  the  year  when  the  valuation  is  re- 
turned, should  be  adopted,  the  small  towns  would  not  wish  for  the 
privilege  proposed  by  this  resolution. 

Messrs.  Hazard  of  Hancock  and  Tilden  of  Hanson,  were 
opposed  to  the  system  recommended  by  the  standing  committee,  and 
to  this  resolution  in  consequence. 

The  question  was  taken  upon  the  amendment  as  amended,  and 
decided  in  the  negative.     The  resolution  itself  was  then  rejected. 

The  committee  then  proceeded  to  the  discussion  of  the  other 
resolution  introduced  by  Mr.  Prescott,  which,  after  striking  out  a 
clause  having  reference  to  the  resolution  just  rejected,  was  as 
follows,  viz.  : 

Resolved,  That  it  is  proper  and  expedient  so  far  to  alter  the  constitution  as  to  pro- 
vide that  each  of  the  small  towns,  and  of  the  towns  and  districts  now  united,  for 
the  purpose  of  choosing  a  representative,  which  contain  less  than  1200  inhabitants, 
shall  be  entitled  to  elect  a  representative  every  year  in  which  a  valuation  of  estate 
within  this  Commonwealth  shall  be  settled,  provided  that  the  Legislature  of  that 
year  shall  never  appoint  the  year  in  which  the  next  valuation  shall  be  made. 


MASSACHUSETTS     CONVENTION.  331 

Mr.  S.  Porter  of  Hadley  moved  to  amend  by  adding — 

Provided,  that  any  two  adjoining  towns,  each  containing  less  than  1200  inhabitants, 
being  in  the  same  class,  and  being  desirous  of  belonging  to  different  classes,  shall, 
upon  application  to  the  General  Court  for  that  purpose,  be  so  classed,  and  ever  after- 
wards send  one  representative  every  other  year,  until  one  of  them  shall  by  its  numbers, 
agreeably  to  the  provisions  of  this  constitution,  be  entitled  to  send  one  every  year. 

The  amendment  was  adopted — 107  to  103. 

The  question  recurring  on  the  resolution  as  amended, 

Mr.  Dwight  of  Springfield  opposed  it.  It  appeared  to  him  that 
the  large  towns  gave  up  more  than  their  proportion  in  the  sys- 
tem recommended  by  the  standing  committee.  They  felt  the 
power  of  the  reason  urged  in  favor  of  the  measure — that  the  house 
of  representatives  was  unwieldy — and  they  were  willing  to  make 
great  sacrifices.  He  thought  they  had  given  up  enough  ;  if  this 
resolution  prevails,  the  same  difficulty  will  recur,  which  it  was  the 
object  of  the  committee  to  guard  against.  The  house  would  have 
an  increase  of  seventy  members  on  the  year  of  settling  a  valuation. 
He  could  see  no  reason  for  the  small  towns  having  more  than  a  fair 
representation  when  important  measures  were  to  be  acted  upon  ; 
the  old  system  had  better  be  retained. 

Mr  Stowell  of  Peru  said  he  came  from  a  small  town.  The  alter- 
ations in  the  constitution  in  respect  to  the  house  of  representatives 
were  those  which  would  be  most  felt  by  the  community.  The 
reduction  in  the  number  of  representatives  must  be  founded  on  a 
mutual  concession  of  rights.  He  considered  the  large  towns  entitled 
to  a  representation  every  year,  and  they  would  not  be  deprived  by 
the  arrangement  proposed  ;  and  he  considered  it  no  more  than  equal, 
that  the  small  towns  should  be  represented  whenever  there  was  a 
valuation  ;  they  would  have  to  pay  every  year  when  they  were  not 
represented. 

Mr.  Lawrence  of  Groton  said  every  town  would  be  endeavoring 
to  throw  the  burden  off  itself  when  the  valuation  was  settled,  and  he 
thought  the  small  towns  ought  to  be  heard  as  well  as  the  large  ones. 

Mr.  Apthorp  of  Boston  did  not  conceive  that  the  small  towns 
gave  up  the  right  of  being  represented. 

Mr.  Stowell  said  the  small  towns  did  in  fact  give  up  a  portion 
of  their  representation.  If  two  towns  were  classed,  the  largest  sends 
the  first  year.  It  may  be  five  miles  from  the  small  town.  What 
representation,  he  asked,  has  the  small  town  this  year  ?  He  hoped 
something  like  the  amendment  of  the  gentleman  from  Hadley, 
would  prevail. 

The  resolution  was  adopted,  178  to  84. 

The  committee  then  took  up  Mr.  Lincoln's  resolutions  proposing 
that  every  town  should  send  one  representative  ;  towns  of  13000  in- 
habitants, two  ;  of  6500,  three  ;  and  so  on.  adding  500  to  the  last 
increasing  ratio.  After  some  debate  upon  the  propriety  of  discuss- 
ing them  in  the  committee  which  had  already  adopted  resolutions 
repugnant  to  them,  they  were  negatived,  with  an  understanding 
that  they  would  be  brought  forward  again  in  convention. 


332  MASSACHUSETTS     CONVENTION. 

The  resolution  offered  by  Mr.  Lyman,  for  dividing  the  Common- 
wealth into  districts,  for  the  choice  of  representatives,  was  taken  up. 
Mr.  Pickman  said  that  he  was  decidedly  opposed  to  the  system  of 
representation  reported  by  the  select  committee,  and  in  favor  of  that 
proposed  by  this  resolution.  He  did  not  wish,  however,  to  urge 
the  committee  to  debate  the  subject  at  present,  but  gave  notice  that 
when  the  report  of  the  select  committee  came  before  the  Conven- 
tion, he  should  move  to  amend  it  by  substituting  the  proposition 
contained  in  this  resolution.  The  question  on  the  resolution  was 
then  taken,  and  passed  in  the  negative. 

Mr.  Nichols's  resolution,  providing  that  no  pecuniary  qualifica- 
tion should  be  required  for  senators  or  representatives,  was  taken  up. 
Mr.  Nichols  said  he  was  willing  that  it  should.be  negatived  in 
the  committee,  without  debate,  that  he  might  renew  it  in  the  Con- 
vention, after  another  resolution  of  similar  import,  had  been  dis- 
cussed. The  question  was  then  taken  on  the  resolution,  and  de- 
cided in  the  negative.  The  committee  rose,  and  reported  their 
agreement  to  the  resolutions  offered  by  the  select  committee,  and 
one  other  resolution,  and  their  disagreement  to  the  other  resolutions 
committed  to  them. 

On  motion  of  Mr.  Blake,  the  Convention  went  into  committee  of 
the  whole,  on  that  part  of  the  constitution  relating  to  the  lieutenant 
governor  and  council :  Mr.  Webster  in  the  chair. 

The  Chairman  stated  that  the  subjects  referred  to  the  committee 
were  the  report  of  the  select  committee,  which  had  been  recommit- 
ted, and  several  independent  resolutions  relating  to  the  council. 

The  subject  first  taken  up,  was  the  resolution  offered  by  Mr. 
Dearborn,  so  to  amend  the  constitution,  that  that  part  of  it  which 
relates  to  the  council,  shall  be  inoperative. 

Mr.  Dearborn  said,  that  when  the  State  was  a  colony,  and  the 
governor  was  appointed  by  the  king,  to  whom  only  he  was  respon- 
sible, it  was  very  proper  that  he  should  be  surrounded  by  a  council 
chosen  by  the  people,  who  should  have  a  control  over  his  measures. 
Such  a  council  had  existed  under  the  colonial  government,  and  be- 
sides having  a  negative  on  the  appointments  of  the  governor  and 
the  proper  powers  of  a  council,  they  acted  as  a  branch  of  the  Leg- 
islature, and  had  a  negative  on  the  proceedings  of  the  house  of  rep- 
resentatives. Under  our  constitution,  where  the  governor  was  an- 
nually chosen  by  the  people,  responsible  to  them,  and  liable  to 
impeachment  for  misconduct,  such  a  body  was  not  necessary.  That 
part  of  their  duties  which  consisted  of  approving  or  negativing  the 
nominations  of  the  governor,  he  proposed  to  transfer  to  the  senate. 
The  other  duties,  he  thought,  could  be  better  performed  by  proper 
officers,  appointed  for  the  purpose.  The  duty  of  examining  the 
returns  of  votes,  could  be  performed  by  the  secretary  and  his  clerks 
— the  military  business,  by  the  governor,  adjutant-general,  and 
quarter-master  general.  A  part  of  the  duties  which  had  devolved  on 
the  council,  were  purely  legislative,  and  might  be  more  satisfacto- 
rily performed  by  the  Legislature.     There  were  but  seven  or  eight 


MASSACHUSETTS    CONVENTION.  333 

of  the  states  of  the  Union  which  had  any  council.  In  the  govern- 
ment of  the  United  States,  no  difficulty  had  been  experienced  from 
devolving  on  the  president  the  performance  of  all  executive  duties, 
with  the  advice  of  his  cabinet  ministers ;  the  senate  having  the 
power  of  negativing  appointments.  In  this  State,  the  duties  of  the 
governor  were  clearly  pointed  out,  and  the  person  elected  to  the 
office  was  of  such  an  exalted  character,  that  he  might  be  confided 
in  to  perform  those  duties  faithfully.  He  might  perform  them  with- 
out a  council,  more  to  his  own  satisfaction,  and  as  much  to  that  of 
the  people.  By  dispensing  with  the  council,  there  would  be  an  an- 
nual saving  to  the  State,  in  the  expenses  of  government,  of  several 
thousand  dollars. 

Mr.  Sturgis  of  Boston  opposed  the  resolution.  He  thought  it 
was  incumbent  on  any  gentleman  proposing  a  material  amendment 
to  the  constitution,  to  show  that  the  experience  of  forty  years  had 
pointed  out  some  serious  inconvenience,  or  that  his  proposition  was 
decidedly  an  improvement,  and  calculated  to  give  facility  to  the  op- 
erations of  government.  The  gentleman  from  Roxbury  had  sup- 
ported his  resolution  on  three  grounds  ; — that  it  would  facilitate  the 
operations  of  the  executive  department,  it  would  increase  the  sense 
of  responsibility  in  the  governor,  and  would  be  more  economical. 
Mr.  S.  did  not  agree  with  him  on  either  of  these  grounds.  It  will 
not  increase  the  responsibility  of  the  executive.  The  governor  must 
obtain  information  from  some  source.  He  now  relies  on  the  coun- 
cil, a  body  of  intelligent  men,  of  distinguished  character,  who  come 
from  the  different  parts  of  the  State,  and  feel  the  responsibility  of 
their  situations.  Each  feels  a  particular  responsibility  to  the  people 
of  that  part  of  the  country  from  which  he  comes.  They  look  im- 
mediately to  him  as  the  adviser  in  cases  where  they  are  particularly 
interested.  He  did  not  think  it  would  be  an  economical  measure 
to  abolish  the  council.  It  would  cost  the  State  four  times  as  much 
to  have  the  duties  performed  in  any  other  way.  If  gentlemen 
would  look  to  the  nature  of  those  duties,  they  would  perceive  the 
utter  impossibility  of  their  being  performed  by  one  man.  Among 
these  duties,  besides  the  acting  upon  all  executive  appointments, 
we*re  the  settlement  of  the  accounts  of  the  county  treasurers,  the 
superintendence  of  the  State  Prison,  particularly  the  acting  upon 
applications  for  pardon,  which  engage  the  time  and  attention  of  a 
committee  of  the  council  for  nearly  a  third  of  the  year — the  exam- 
ining of  returns  of  votes,  a  duty  which  he  thought  ought  not  to  de- 
volve on  the  secretary — the  appointment  of  pilots  and  regulation  of 
their  fees,  and  many  other  duties,  part  of  which,  if  not  performed 
by  the  council,  would  necessarily  devolve  on  the  Legislature  :  and 
other  parts  which  the  governor  alone  could  not  perform.  It  might 
be  necessary  to  appoint  a  board  of  finance,  consisting  of  persons  of 
high  standing,  to  whom  salaries  must  be  paid.  Gentlemen  are  in- 
duced to  accept  a  seat  in  the  council,  by  the  honor  of  the  appoint- 
ment, who  would  not  be,  for  any  pecuniary  consideration.  The 
duties  in  relation  to  the  State  Prison  could  be   in  no  other  way  so 


334  MASSACHUSETTS    CONVENTION. 

well  performed  as  by  a  committee  of  the  council.  They  were  of  a 
responsible  nature  and  demanded  much  time  and  attention.  It  was 
possible  the  military  business  might  be  well  performed  if  left  en- 
tirely to  the  governor,  and  the  adjutant  and  quarter-master  generals, 
but  there  could  be  no  harm  in  having  a  committee  of  the  council, 
including  men  of  distinguished  military  talents  and  information,  to 
superintend  those  departments.  He  was  satisfied  that  the  duties 
which  devolve  on  the  council,  had  been  heretofore  well  performed, 
and  that  it  could  not  be  in  any  other  way  done  so  economically. 

Mr.  Parker  of  Boston  spoke  against  the  resolution.  Although 
in  theory  it  was  held  to  be  important  that  the  executive  should  be 
single,  it  was  yet  found  necessary  to  depart  from  the  principle  in 
some  measure  in  practice.  In  the  British  government,  the  king  is 
obliged  to  consult  the  ministers,  and  they  are  made  responsible  for 
the  measures  of  the  executive.  The  president  of  the  United  States 
is  obliged  to  gather  round  him  his  cabinet.  The  governor  must 
have  advice ;  he  must  either  consult  those  whom  the  people  place 
around  him,  and  in  whom  they  confide,  or  those  whom  he  confides 
in.  If  we  were  now  forming  a  new  constitution,  he  should  prefer 
placing  round  the  governor  a  council  selected  by  the  people.  There 
are  now  particular  duties  which  they  have  been  accustomed  to  per- 
form, and  which,  if  the  office  is  to  be  abolished,  it  would  be  neces- 
sary to  commit  to  other  hands.  It  would  be  necessary  to  have  a 
comptroller  of  the  treasury — additional  military  officers — a  board  of 
pardons,  and  perhaps  other  officers,  with  competent  salaries,  the 
expense  of  which  would  be  much  greater  than  that  of  the  council. 

Mr.  Pickman  said  that,  as  regarded  the  responsibility  of  the  gov- 
ernor, that  object  was  as  fully  secured  now,  as  if  there  were  no 
council.  The  governor  is  responsible  for  all  appointments,  because 
he  has  the  sole  power  of  nominating.  The  council  are  also  respon- 
sible, because  no  appointment  can  be  made  without  their  approba- 
tion. He  thought  that  in  all  the  states  of  the  Union,  there  was  no 
one  in  which  the  executive  was  more  wisely  constituted  than  in 
this  Commonwealth. 

The  question  was  then  taken  on  the  resolution,  and  decided  in 
the  negative,  by  a  large  majority. 

The  second  resolution,  providing  that  the  lieutenant  governor 
shall  be  president  of  the  senate,  &c,  was  taken  up,  and  negatived. 

The  third  resolution  also  passed  in  the  negative. 

The  report  of  the  select  committee  was  then  taken  up.  The 
chairman  stated  that  the  committee  had  agreed  to  several  of  the 
resolutions  in  the  report,  with  amendments,  but  the  Convention 
having  recommitted  the  subject  to  a  committee  of  the  whole,  with- 
out having  ratified  the  proceedings  of  the  first  committee,  the 
amendments  agreed  to,  had  fallen,  and  the  report  must  be  taken  up, 
de  novo. 

The  resolutions  having  been  read, 

Mr.  Pickman,  chairman  of  the  select  committee,  rose  to  state  the 
views  of  the  committee.  He  said  that  they  had  proposed  to  make 
no  alteration  in  relation  to  the  office  of  lieutenant  governor,  except 


MASSACHUSETTS    CONVENTION.  335 

to  put  the  qualification  on  the  same  footing  which  should  be  agreed 
to  in  relation  to  the  governor.  They  had  thought  the  office  of  lieu- 
tenant governor  important — that  the  person  provided  to  fill  the  ex- 
ecutive chair,  in  case  of  vacancy  by  the  death,  sickness,  or  absence 
of  the  governor,  should  be  chosen  by  the  people,  and  should  possess 
the  same  qualifications  as  the  governor — that  he  should  be  united 
with  the  council,  that  being  the  best  school  to  qualify  him  for  the 
duties  of  governor.  It  sometimes  happened,  in  consequence  of 
the  temporary  absence  of  the  governor,  that,  unless  the  lieutenant 
governor  was  able  to  act  as  chief  magistrate,  the  business  of  the  de- 
partment would  be  necessarily  suspended.  There  had  been  four 
instances  since  the  adoption  of  the  constitution,  in  which  the  duties 
of  governor  had  devolved,  for  a  considerable  length  of  time,  on  the 
lieutenant  governor,  and  had  been  performed  to  the  acceptance  of  the 
public.  He  was  clearly  of  opinion  that  the  office  of  lieutenant  gov- 
ernor was  necessary,  and  that  it  was  much  the  best  mode  of  providing 
for  a  vacancy,  which  is  always  liable  to  occur.  In  relation  to  the 
council,  the  committee  proposed  to  make  no  alteration,  but  such  as 
should  accommodate  it  to  the  present  condition  of  the  Common- 
wealth as  it  was  affected  by  the  separation.  All  the  members  of 
the  committee  thought  that  seven  counsellors,  instead  of  nine, 
would  be  now  amply  sufficient  to  perform  the  duties  of  the  office. 
The  next  alteration  which  they  proposed,  was  to  dispense  with  the 
farce  of  electing  counsellors  from  the  senate,  who  were  not  expected 
to  accept  the  appointment.  It  had  been  his  opinion  that  it  was  not 
the  intention  of  the  framers  of  the  constitution,  that  the  persons 
chosen  from  the  senate  should  decline  the  appointment  and  con- 
tinue to  hold  their  seats  in  the  senate.  But,  on  mature  reflection, 
he  was  satisfied  that  this  opinion  was  erroneous,  and  that  the  per- 
sons so  elected  ought  to  have  the  option  of  declining,  and  that  in 
many  cases  it  was  their  duty  to  decline.  Otherwise  it  would  give 
to  the  house  of  representatives  the  power  entirely  to  control  the 
senate,  which  could  never  have  been  the  intention  of  the  people  in 
adopting  the  constitution.  It  had  been  the  practice  for  fifteen  or 
twenty  years  past,  to  elect  persons  from  the  senate,  with  the  expec- 
tation that  they  would  decline,  and  afterwards  to  choose  the  coun- 
sellors who  were  expected  to  act  in  that  capacity,  from  the  people 
at  large.  The  constitution  had  wisely  provided  that  this  choice 
should  be  made  in  joint  convention  of  the  two  houses  of  the  Legis- 
lature. No  persons  in  the  community  are  so  well  qualified  as  they 
to  make  the  choice.  It  was  important  that  the  council  should  be 
so  constituted  that  they  might  be  disposed  to  act  in  unison  with 
the  governor.  The  governor  should  not  have  the  apology  that  he 
could  not  transact  the  business  of  his  office  in  the  manner  which  he 
preferred,  because  he  was  opposed  by  his  council.  Nor,  on  the 
other  hand,  should  the  council  have  such  an  apology.  This  har- 
mony of  opinions  was  likely  to  be  obtained,  when  the  council  was 
chosen  by  the  joint  vote  of  the  two  houses  of  the  Legislature.  The 
committee  therefore  entirely  approved  the  mode  of  election  which 


336  MASSACHUSETTS    CONVENTION. 

had  prevailed  under  the  constitution,  for  the  last  fifteen  years.  The 
amendment  which  they  proposed,  was  only  intended  to  make  the 
constitution  what  it  had  been  in  effect  under  a  long  continued  prac- 
tice, which  had  been  found  salutary. 

Mr.  Apthorp  moved  to  amend  the  first  resolution,  in  the  manner 
which  had  been  formerly  agreed  to  by  the  committee  of  the  whole, 
viz.,  to  provide  that  the  qualifications  of  the  lieutenant  governor 
shall  be  the  same  as  are  required  for  the  governor. 

The  amendment  was  agreed  to,  and  the  resolution,  as  amended, 
adopted. 

The  second  resolution,  which  fixes  the  number  of  counsellors  at 
seven,  and  the  quorum  at  four,  was  taken  up,  and  agreed  to. 

The  third  resolution  was  taken  up,  and  Mr.  Blake  moved  to 
amend  it,  by  striking  out  the  substantial  part  of  it,  and  inserting  a 
provision  that,  besides  the  persons  chosen  for  senators,  there  shall 
be  annually  chosen  by  the  people,  in  each  senatorial  district,  an 
equal  number  of  persons  to  be  returned  as  counsellors.  And  from 
the  persons  thus  returned,  the  two  houses  in  convention  shall  elect 
certain  persons  to  be  counsellors. 

On  motion  of  Mr.  Varnum,  the  committee  rose,  reported  progress, 
and  had  leave  to  sit  again. 

Mr.  Sibley  of  Sutton  moved  that  when  the  House  adjourned, 
they  should  adjourn  to  this  afternoon,  at  half-past  3  o'clock.  He 
thought  they  might  spend  the  afternoon  profitably,  at  least  as  much 
so  as  they  had  this  forenoon.  He  afterwards  withdrew  his  motion, 
and  it  was  moved,  that  after  this  day,  except  on  Saturdays,  there 
should  be  two  sessions  each  day.     Agreed  to,  158  to  107. 

Mr.  Sturgis  gave  notice  that  he  should  tomorrow  move  for  a 
reconsideration  of  this  vote.  A  motion  to  print  the  resolution  of- 
fered by  Mr.  Blake  was  negatived. 

Adjourned. 


Tuesday,  December  19. 

The  House  met  at  9  o'clock,  and  attended  prayers  offered  by 
the  Rev.  Mr.  Jenks.     The  journal  of  yesterday  was  then  read. 

Mr.  Dana  of  Groton  introduced  a  resolution  proposing  to  abolish 
the  office  of  solicitor  general,  after  a  vacancy  shall  take  place  in  that 
office. 

Referred  to  a  committee  of  the  whole,  and  assigned  for  tomorrow, 
at  9  o'clock. 

The  first  resolution  of  the  second  report  of  the  standing  commit- 
tee on  the  senate,  &c,  proposing  to  alter  the  constitution  so  as  to 
provide  that  the  meetings  of  towns  and  districts  for  the  choice  of 
governor,  lieutenant  governor,  senators,  and  representatives,  shall 
be  held  on  the  same  day  in  each  year,  and  that  said  meetings  may 
be  continued  from  day  to  day.  not  exceeding  three  days,  for  the 
purpose  of  completing  the  choice  of  representatives,  received  a 
second  reading. 


MASSACHUSETTS    CONVENTION.  337 

Mr.  Hubbard  of  Boston  opposed  the  resolution.  He  thought  it 
was  useful  to  have  the  election  of  representatives  on  a  different  day 
from  that  on  which  the  other  officers  of  the  government  were 
elected,  in  order  to  represent  the  different  state  of  popular  feeling 
which  might  take  place. 

The  resolution  passed. 

The  second  resolution  fixes  the  day  for  holding  these  meetings, 
viz.,  the  second  Monday  of  November. 

Mr.  Lincoln  of  Boston  moved  to  substitute  Wednesday  for  Mon- 
day. 

The  motion  was  negatived,  after  a  slight  debate,  in  which  Mr. 
Lincoln  supported  it,  and  Messrs.  Q,uincy  of  Boston  and  Foster  of 
Littleton  opposed  it. 

Mr.  Fox  of  Berkley  moved  to  substitute  October  for  November. 

The  motion  was  negatived,  and  the  resolution  passed. 

The  Convention  then  went  into  committee  of  the  whole  on  that 
part  of  the  constitution  relating  to  the  council,  Mr.  Webster  in  the 
chair. 

The  amendment  offered  yesterday  by  Mr.  Blake,  on  the  third 
resolution  of  the  select  committee,  being  read, 

Mr.  Blake  rose  to  support  the  amendment.  He  said,  that  in 
speaking  on  all  questions  on  which  he  had  risen  in  the  Convention, 
he  had  endeavored  to  concentrate  his  remarks,  and  occupy  as  little 
time  as  possible.  He  thought  he  had  not  been  in  fault  for  the 
great  consumption  of  the  time  of  the  Convention,  on  the  subject 
now  before  the  committee.  In  relation  to  the  proposition  which  he 
had  now  submitted,  he  was  not  tenacious  about  its  details.  Give 
him  the  principle  that  in  elections  of  counsellors  they  should  be 
chosen  by  the  people,  and  he  was  indifferent  in  what  manner  it  was 
modified.  This  was  the  only  principle  which  he  considered  essen- 
tial. The  proposition  to  elect  in  districts,  as  well  as  that  to  restore 
the  mode  provided  by  the  constitution,  had  been  rejected.  The 
proposition  to  choose  by  a  general  ticket,  to  be  sure,  had  passed  the 
committee  of  the  whole,  but  by  so  small  a  majority  that  he  was 
willing  to  consider  it  as  rejected.  The  only  choice,  therefore,  was 
between  the  proposition  which  he  had  made,  and  that  of  electing 
by  the  members  of  the  Legislature.  The  latter  mode  he  considered 
a  direct  violation  of  a  fundamental  principle  of  the  constitution. 
The  practice  which  had  prevailed  for  the  last  fifteen  years  had 
been  productive  of  two  evils.  It  had  deprived  the  people  of  their 
voice  in  the  election  of  counsellors,  and  had  increased  the  senate 
beyond  the  number  originally  intended.  It  had  been  argued,  that 
by  the  usage  of  the  last  fifteen  years,  a  practical  construction  had 
been  given  to  the  constitution,  conforming  to  the  mode  proposed  by 
the  select  committee.  He  contended  that  the  practice  had  not  been 
such  as  to  authorize  this  inference.  No  senator  or  representative 
had  ever  pretended  that  they  had  a  right  to  elect  counsellors,  with- 
out first  making  choice  of  those  who  had  been  returned  by  the  peo- 
ple. But  if  the  practice  had  been  otherwise,  no  usaa;e.  no  acquies- 
43 


338  MASSACHUSETTS     CONVENTION. 

cence  in  a  custom  in  violation  of  the  constitution,  could  deprive  the 
people  of  their  rights.  It  was  argued  in  favor  of  the  mode  proposed 
hy  the  select  committee,  that  a  choice  by  the  representatives  of  the 
people,  was  a  choice  by  the  people.  He  contended  that  the  maxim, 
quifacit  per  alium  facit  per  se,  though  good  in  law,  was  not  a  sound 
principle  in  politics.  It  was  argued  that  the  mode  of  electing  by 
the  Legislature  was  the  most  convenient.  On  this  principle,  if  a 
sound  one,  the  people  ought  to  be  deprived  of  the  power  of  making 
all  elections.  He  proceeded  to  consider  the  other  arguments  that 
had  been  urged  in  favor  of  choosing  by  the  Legislature,  and  the 
objections  to  the  election  by  the  people.  The  proposition  of  the 
select  committee  went  to  deprive  the  people  of  their  voice  in  the 
election.     For  that  reason  he  was  not  prepared  to  assent  to  it. 

Mr.  Dutton  of  Boston  said  no  subject  had  been  so  fruitful  in  pro- 
jects as  this  relating  to  the  council.     There  were  three  before   the 
committee,  besides  the  one  reported  by  the  select  committee.      The 
best  argument  for  that   of  the  select  committee  was,  that  all  the 
other  projects  were  full  of  inconveniences  and  difficulties.     It  was 
said  to  be  a  fundamental  principle  that  the  people  should  choose  the 
counsellors  ;  he  did  not  understand  this  language.     The  people  had 
as  much  a  right  to  choose  sheriffs,  judges,  &c.     It  was  said  that  a 
choice  of  counsellors,  who  form  a  part  of  the   executive,  by  the 
Legislature,  was  an  intermingling    of  the  powers  of  the    distinct 
branches  of  government.     It  was  no  more  so  than  that  the  judiciary 
should  be  appointed  by  the  executive.    The  true  principle  was.  that 
the  different  departments  should  exercise  distinct  powers.      The 
right  to  change  the  mode  was  as  clear  as  the  right  to  make  any 
other  change  in  the  constitution.     The  only  question  was  as  to  the 
expediency.    Was  it  convenient,  and  for  the  interests  of  the  people, 
that  the  counsellors  should  be  elected  in  the  mode  proposed  in  this 
amendment  ?     It  would  he  troublesome  to  vote  for  so  many  candi- 
dates, and  difficult  to  agree  in  the  selection  of  so  many.     Would 
gentlemen  qualified  for  the  office  consent  to  be  candidates,  and  sub- 
mit their  characters  to  public  scrutiny,  when,  if  elected  by  the  peo- 
ple, they  would  have  but  one  chance  in  five  of  obtaining  the  office, 
and  twenty-nine  out  of  thirty-six  must  be  laid  on  the  shelf  ?     How 
would  the  candidates  be  selected  ?     It  must  be  either  by  the  Legis- 
lature, in  which  case  all  the   arguments  would   apply  which  have 
been  urged  against  an  election  by  the  Legislature,  or  in  some  other 
mode  liable  to  greater  objections.     In  both  cases,  the  boasted  right 
of  choice  goes  for  nothing.     He  thought  the  plan  proposed  by  the 
select  committee  recommended  itself  to  the  people.     It  was  con- 
formable to  the  practice  under  the  constitution,  and  he  was  satisfied 
that  practice  was  correct.     He  thought  it  preferable  that  the  Legis- 
lature should  choose  from  the  people  at  large,   rather  than  from 
a  limited   number.      They  would  thus  be  able  to  select  persons 
best   qualified,    and   command  a  variety   of  talents  suited  to  the 
different  duties  to  be  performed  by  the  council.     The  only  interest 
of  the   people  was  that  they  should  have  a  good  council.     They 


MASSACHUSETTS     CONVENTION.  339 

want  good  judges,  but  it  does  not  follow  that  they  must  choose 
them.  He  was  not  accustomed  to  make  professions  about  the  peo- 
ple's rights.  He  would  do  everything  for  the  people,  but  not  every 
thing  by  the  people. 

Mr.  Morton  was  opposed  to  the  resolution  as  it  stood.  He  had 
offered  a  proposition  which  should  provide  for  the  election  of  one 
person  by  the  people,  to  be  returned  from  each  senatorial  district, 
out  of  which  seven  counsellors  should  be  elected  by  the  Legislature. 
This  agreed,  in  substance,  with  the  proposition  before  the  commit- 
tee, except  in  regard  to  the  number  of  persons  to  be  returned  by  the 
people.  He  was  opposed  to  giving  the  Legislature  so  wide  a  range 
in  their  choice.  He  therefore  moved  to  amend  the  resolution  under 
consideration,  by  substituting  that  which  he  had  before  submitted. 

Mr.  Blake  said  he  had  before  stated  that  he  was  tenacious  only 
of  the  principle,  and  not  anxious  about  the  particular  number  of 
persons  to  be  chosen  by  the  people.  He  therefore  withdrew  his 
resolution  to  give  place  to  that  offered  by  the  gentleman  from  Dor- 
chester. The  resolution  offered  by  Mr.  Morton  was  then  read. 
It  provides  that  there  shall  be  annually  chosen  by  the  people  of 
each  senatorial  district,  one  person  to  be  returned  to  the  General 
Court,  out  of  whom  the  two  branches  by  joint  ballot  shall  choose 
seven  to  be  counsellors. 

Mr.  Morton  contended  that  the  practice  which  had  prevailed 
was  a  violation  of  the  constitution,  and  ought  to  be  corrected.  In 
what  manner  should  it  be  done  ?  It  was  a  fundamental  principle 
of  a  free  government  that  the  executive  should  be  chosen  by  the 
people.  This  had  been  intended  by  the  framers  of  the  present  con- 
stitution. They  had  no  idea  that  the  persons  chosen  by  the  peo- 
ple as  counsellors  and  senators,  selected  by  the  Legislature  as  coun- 
sellors, would  all  decline.  The  principle  could  only  be  restored  to 
the  constitution  by  giving  the  choice  to  the  people.  He  had  pre- 
ferred that  this  should  be  done  by  election  in  districts.  But  gen- 
tlemen did  not  like  this  mode,  and  had  rejected  the  proposition  for 
that  object.  It  was  necessary,  therefore,  to  resort  to  some  other 
mode,  and  this  he  considered  the  best.  It  restored  a  fundamental 
principle  of  the  constitution,  and  for  that  reason  he  was  in  favor 
of  it. 

Mr.  Thorndike  hoped  that  in  deciding  upon  this  amendment, 
they  should  decide  upon  all  amendments  to  the  proposition  of  the 
select  committee.  They  appeared  to  him  to  be  in  substance  the 
same  thing.  The  question  to  be  decided  was,  what  was  the  best 
mode  of  selecting  seven  counsellors,  so  as  to  obtain  men  best  quali- 
fied. He  thought  the  mode  which  had  been  adhered  to  in  practice 
under  the  constitution,  was  the  best.  Gentlemen  had  contended 
that  it  was  liable  to  abuses.  He  had  for  many  years  had  a  seat  in 
the  Legislature,  and  he  had  seen  no  such  abuses.  It  was  the  most 
simple,  and  he  thought  the  most  satisfactory  mode.  It  was  a  mode 
in  which  men  best  qualified  from  every  part  of  the  Commonwealth 
could  be  obtained,  and  men  most  likely  to  meet  the  approbation  of 


340  MASSACHUSETTS     CONVENTION. 

the  people.  The  people  could  judge  and  compare  their  opinions  in 
no  other  way  so  well  as  through  their  representatives  in  the  two 
branches  of  the  Legislature.  It  was  a  power  little  likely  to  be 
abused.  It  was  the  first  act  performed  by  them  after  coming  to- 
gether from  among  their  immediate  constituents.  If  they  did  not 
consult  the  wishes  of  their  constituents  in  the  election  of  counsellors 
as  well  as  in  their  other  duties,  they  would  not  be  again  elected  to 
their  seats.  This  would  give  them  a  sufficient  interest  in  consult- 
ing the  wishes  of  the  people.  He  hoped  that  the  amendment  would 
not  prevail,  and  that  the  resolution  reported  by  the  select  commit- 
tee would  pass  without  any  amendment. 

Mr.  Parker  of  Boston  said  he  respected  the  professions  which  he 
had  heard  of  regard  for  the  constitution,  for  he  presumed  they  were 
sincere.     But  they  did  not  all  appear  to   him  to  be  entirely  con- 
sistent with  the  propositions  which  gentlemen  had  supported.     One 
gentleman  had  brought  forward  a  detailed  scheme  which  he  had 
supported  by  a  long   argument  intended  to  show  that  his  system 
was  the  best  that  could  be  presented.     As  soon  as  he  sat  down, 
however,  he  gave  it  up  for  another,  different  in  principle  as  well  as 
in  its  details.     The  gentleman  from  Dorchester  had  proposed  that  in 
each  senatorial  district  one  person  should  be  chosen  by  the  people, 
to  be  candidate  for  counsellor.     Of  these  persons,  who  must  be  ten 
at  least  in  number,  seven  only  were  to  be  chosen  by  the  Legislature 
for  counsellors  ;  or  if  it  should  happen  that  seven  only  should  be 
chosen  by  the  people,  they  are  to  form  the  council.     What  is  to 
become  of  the  voice  of  the  people  in  the  other  districts?     Why 
give  seven  counties  the  voice  of  the  people  in  the  choice  of  coun- 
sellors, and  give  the  Legislature  the  power  to  thwart  the  wishes  of 
the  people  in  the  three  other  districts  ?     It  appeared  to  him  to  have 
only  the  semblance  of  giving  the  choice  to  the  people,  and  in  fact 
to  deprive  the  Legislature  of  the  power  of  choosing  to  the   best 
advantage.     The  amendment  first  proposed  he  considered  the  best 
of  the  two,  because  it  afforded  the  widest  field  for  selection.     But 
the  proposition  of  the  select  committee  was  still  better,  because  it 
gave  the  Legislature   the  whole  Commonwealth  to   choose  from. 
The  gentleman  from  Dorchester  had  declared  it  to  be  his  object  to 
restore,  in  substance,  the  original  plan  of  the  constitution.     Yet  he 
had  proposed  to  provide,  that  if  a  vacancy  occurred  while  the  Legis- 
lature were  not  in  session,  it  was  to  be  supplied  by  the  governor 
and  council.     This  was  a  material  departure  from  the   constitution 
— much  greater  than  to  give  the  members  of  the  Legislature,  dele- 
gated with  authority  for  this  very  object,  the   power  of  choosing 
the  council.     This  had  been  said  to  be  a  departure  from  the  princi- 
ples of  a  free  government,  and  opposed  to  the  wishes  of  the  people. 
We  had  just  had  the  example  of  Maine,  brought  up  under  our  own 
constitution, — the  child  of  republicanism  in  its  strongest  sense, — 
forming  a  constitution  with  a  full  sense  of  the  people's  rights,  which 
contains  the  very  provision  for  the  choice  of  their  council  which  is 
recommended  by  the  select  committee.    This  constitution  had  been 


MASSACHUSETTS    CONVENTION.  241 

adopted  by  the  people  of  that  state  by  the  immense  majority  of 
24,000  votes  in  favor  of  it,  and  only  800  against  it.  In  Virginia, 
once  the  ancient  dominion,  now  the  queen  of  republics,  the  gov- 
ernor was  chosen  by  the  two  houses  of  the  legislature.  It  was  the 
same  in  several  other  states.  He  thought  the  only  way  to  get  rid 
of  the  embarrassment  the  committee  were  in,  was  to  adopt  the  reso- 
lution reported  by  the  select  committee. 

Mr.  Bond  said  that  the  proposition  before  the  committee  was  so 
perplexed,  and  attended  with  so  many  difficulties,  that  he  thought 
that  the  gentleman  who  offered  it  would  not  himself  vote  for  it,  if 
he  would  look  into  all  its  consequences.  The  senatorial  districts 
must  be  at  least  ten.  From  the  persons  returned  by  these  districts, 
the  Legislature  were  to  select  seven  for  counsellors.  They  might  or 
might  not  be  from  different  parts  of  the  Commonwealth.  If  it 
happened  that  only  seven  were  chosen,  they  were  to  form  the  coun- 
sel. In  either  case  there  might  be  no  counsellor  from  either  of  the 
three  great  western  districts.  He  proceeded  to  point  out  some  other 
consequences  that  would  result  from  the  scheme,  and  the  complex- 
ness  of  its  details.  The  gentleman  had  observed  that  there  had 
never  been  a  failure  in  the  choice  of  senators.  This  he  apprehended 
was  a  great  mistake.  There  had  been  a  failure  of  election  by  the 
people,  in  some  district  or  other,  almost  every  year,  and  the  defi- 
ciency had  been  supplied  in  the  constitutional  mode.  He  hoped 
the  amendment  would  not  be  adopted,  and  that  the  resolution  of 
the  select  committee  would  be  adopted  without  amendment. 

Mr.  Lincoln  said  that  he  would  reply  to  the  gentleman  from  Dor- 
chester by  the  argumentum  ad  hominem  ;  with  that  species  of  argu- 
ment that  gentleman  was  well  acquainted.  He  had  expressed  a 
great  regard  for  the  voice  of  the  people,  and  he  had  voted  for  an 
apportionment  of  the  senate  according  to  valuation — by  that  mode 
of  apportionment  there  may  be  seven  districts  from  which  all  the 
counsellors  may  be  chosen,  which  shall  yet  contain  but  one  third  of 
the  population  of  the  Commonwealth. 

Mr.  Martin  hoped  the  Convention  were  not  prepared  to  give  up 
all  the  rights  of  the  people.  According  to  the  argument  of  the  gen- 
tleman from  Boston,  it  might  be  proved,  that  the  people  had  no 
right  to  choose  governor  and  senators.  When  we  were  discussing 
the  resolution  about  representatives  the  delegates  from  the  small 
towns  were  called  upon  to  give  their  opinions.  They  all  came 
round  and  looked  like  lambs,  ready  for  the  slaughter.  If  those  148 
towns  were  illegitimate,  let  us  say  so.  If  they  are  not,  let  us  give 
them  a  voice  in  the  choice  of  counsellors.  He  quoted  the  opinion 
of  the  gentleman  from  Qiiincy,  to  prove  that  it  was  the  intention  of 
the  framers  of  the  constitution  that  the  counsellors  chosen  from  the 
senate,  should  accept  the  appointment.  He  said  that  he  considered 
the  report  of  the  committee  was  wrong,  and  he  should  vote  against 
it,  as  long  as  he  could  stand. 

Mr.  Sturgis  said  that  if  the  amendment  prevailed,  it  ought  to  be 
considered  that  the  Legislature,  in  making  their  selection  of  coun- 


342  MASSACHUSETTS    CONVENTION. 

sellors,  would  always  prefer  those  of  the  same  political  opinion  with 
the  majority  of  the  Legislature,  and  that  those  districts  which  re- 
turned persons  of  political  opinions  opposed  to  those  of  a  majority  of 
the  Legislature,  would  never  be  represented  in  the  council,  provided 
there  were  enough  returned  of  opposite  opinions  to  make  up  the 
whole  number. 

Mr.  Dawes  of  Boston.  Mr.  Chairman,  it  appears  to  me  the  sub- 
ject has  been  exhausted,  and  I  doubt  whether  any  gentleman  here 
can  throw  any  light  upon  it.  I  rise,  therefore,  simply  to  call  for  the 
question,  and  that  is  my  speech,  sir. 

Mr.  Freeman  of  Sandwich  observed  that  he  was  constrained  to 
say  he  was  opposed  to  the  amendment.  He  regretted  that  so  much 
time  of  the  Convention  had  been  wasted,  upon  this  and  other  absurd 
propositions  of  the  gentleman  from  Dorchester. 

The  Chairman  called  the  gentleman  to  order. 

Mr.  Freeman  said  he  stood  corrected.  He  proceeded.  The 
amendment  offered  by  the  gentleman  from  Boston  (Mr.  Blake) 
had  his  sanction,  as  it  went  to  form  a  legion  of  honor,  constituted 
by  that  great  emperor,  the  people  ;  but  he  should  vote  against  the 
amendment  now  under  consideration,  as  he  agreed  with  the  learned 
gentleman  from  Boston  (Mr.  Parker),  that  it  would  not  remedy  the 
evil  complained  of,  viz.,  an  election  by  the  Legislature. 

Mr.  Austin  of  Boston  was  aware  of  the  impatience  of  the  com- 
mittee, but  he  thought  their  time  could  not  be  better  spent  than  in 
inquiring  how  they  ought  to  vote  on  this  important  question.  He 
did  not  approve  entirely  of  the  amendment  of  the  gentleman  from 
Dorchester,  because  a  part  of  the  districts  would  not  be  represented. 
If  it  should  prevail,  at  a  proper  time  he  should  move  to  make  the 
number  of  counsellors  as  large  as  that  of  the  senatorial  districts.  He 
did  not  care,  however,  so  much  about  the  particular  arrangement,  as 
about  the  principle,  that  the  people  should  make  the  election.  It 
was  never  suggested  that  the  governor  and  lieutenant  governor 
should  not  be  chosen  by  the  people,  and  he  could  see  no  reason  why 
two-ninths  of  the  executive  should  be  chosen  one  way  and  seven- 
ninths  in  a  different  way.  It  had  been  said  that  if  the  people  choose 
their  representatives,  and  their  representatives  choose  counsellors, 
the  counsellors  are  chosen  by  the  people.  The  same  argument 
might  apply  to  choosing  the  governor.  Follow  the  argument  out, 
and  it  proves  absurd.  It  had  never  been  proved  that  the  agent  will 
act  in  all  respects  like  the  principal.  The  majority  of  the  Legisla- 
ture would  not,  in  many  cases,  have  elected  the  same  person  for 
governor,  whom  they  had  thought  necessary  to  nominate,  in  a 
legislative  caucus,  for  the  people  to  choose. 

Mr.  Austin  mentioned  the  argument,  which  he  said  had  not  yet 
been  answered,  that  the  present  mode  of  choosing  counsellors  was 
a  commingling  of  the  powers  of  the  different  branches  of  the  gov- 
ernment. He  said  this  act  of  sovereignty,  in  the  choice  of  coun- 
sellors, ought  to  be  performed  by  the  people  themselves  and  not  by 
their  agents,  and  the  contemporaneous  exposition  of  the  constitution 


MASSACHUSETTS    CONVENTION.  343 

to  which  the  practice  had  conformed  for  twenty-five  years,  ought  to 
have  great  weight.  It  appeared  by  the  records  of  the  former  con- 
vention, that  a  motion  was  made  to  give  the  Legislature  power  to 
choose  at  once  from  the  people  at  large,  and  was  negatived.  This 
showed  the  practice  of  the  last  fifteen  years  was  a  departure  from 
the  intention  of  the  framers  of  the  constitution.  He  did  not  blame 
any  party ;  it  was  rather  to  be  wondered  at  that  the  passions  of  the 
day  had  not  made  greater  rents  in  the  garment  of  the  State.  Mr.  A. 
urged  some  reasons  in  favor  of  having  a  diversity  of  opinions  among 
the  members  at  the  council  board.  He  complained  of  some  remarks, 
made  by  a  gentleman  the  other  day,  when  he  expressed  similar  sen- 
timents on  the  subject  before  the  committee,  insinuating  that  he 
was  making  a  popular  appeal.  He  exclaimed  against  the  baseness 
of  attempting,  in  that  assembly,  to  court  popular  favor,  and  said, 
that  while  he  held  a  seat  there,  which  was  the  first  he  had  ever  held 
in  an  assembly  of  that  kind,  and  might,  perhaps,  be  the  last,  he 
should  endeavor  to  act  with  that  consistency,  which  gives  respect  to 
error,  and  with  that  integrity  which  gives  confidence  to  truth. 

Mr.  Sibley  of  Sutton  said  the  amendment  might  be  made  a  little 
more  palatable  to  him.     He  moved  to  amend  it  by  adding, 

"  Provided,  nevertheless,  that  the  Legislature  shall  not  leave  any  district  without 
a  counsellor  two  vears  in  succession." 

This  amendment  was  adopted. 

The  question  recurred  upon  the  amendment  as  amended. 

Mr.  Flint  of  Reading  said  this  proposition  had  been  discussed  in 
the  select  committee,  and  that  of  twenty-one  in  that  committee, 
twenty  were  in  favor  of  the  resolution  reported  by  the  committee. 
The  object  of  that  resolution  was  to  prevent  the  Legislature  meeting 
twice  in  convention,  to  choose  counsellors,  where  once  would  be 
sufficient.  It  was  thought  that  a  better  council  would  be  chosen  by 
the  Legislature  than  in  any  other  way.  He  begged  gentlemen  to 
remember,  that  if  all  the  propositions  in  respect  to  the  council  should 
be  rejected,  the  constitution,  nevertheless,  would  be  sound ;  and  he 
hoped,  if  the  resolution  of  the  select  committee  should  not  be  adopt- 
ed, that  the  constitution  would  remain  as  it  is. 

Mr.  Whittemore  of  West  Cambridge  was  opposed  to  taking  from 
the  people  the  right  of  choosing  counsellors.  Gentlemen  might  as 
well  say  that  the  people  were  incapable  of  electing  governor,  lieu- 
tenant governor  and  senators,  as  that  they  are  incapable  of  choosing 
counsellors.  He  had  made  in  the  select  committee  the  same  propo- 
sition which  is  now  made  by  the  gentleman  from  Dorchester,  and 
the  gentleman  from  Reading  was  mistaken  in  saying  that  twenty  of 
the  select  committee  were  in  favor  of  the  resolution  reported,  as  five 
were  absent  when  it  was  agreed  upon. 

Mr.  Flint  rose  to  explain,  but  Mr.  Button  was  on  the  floor. 

Mr.  Dutton  pointed  out  the  operation  of  the  proviso  introduced 
by  the  gentleman  from  Sutton,  and  showed  that  it  would  not  pro- 
duce the  effect  intended.     The  original  amendment  gave  the  Legis- 


344  MASSACHUSETTS    CONVENTION. 

lature  power  to  interfere  only  in  two  cases,  viz.,  when  more  than 
seven,  and  when  less  than  seven  counsellors  were  elected  by  the 
people.  If  the  people  chose  only  seven,  those  seven  were  to  serve  ; 
and  they  might  be  chosen,  time  after  time,  from  the  same  districts, 
leaving  the  other  districts  unrepresented  for  more  than  two  years  in 
succession. 

The  question  was  taken  on  Mr.  Morton's  amendment  as  amended, 
and  decided  in  the  negative — 201  to  183. 
The  question  recurred  on  the  third  resolution  of  the  select  committee. 

Mr.  Leland  of  Roxbury  moved  to  amend  the  resolution  by  strik- 
ing out  the  substantial  part  of  it,  and  inserting  the  second  and  third 
resolutions  formerly  proposed  by  him,  providing  that  the  persons 
returned  as  counsellors  and  senators  shall  designate  from  their  own 
body  persons  to  act  as  counsellors,  and  that  the  persons  so 

designated  shall  cease  to  act  as  senators,  and  the  persons  left  shall 
constitute  the  senate.  He  said  it  was  obvious  that  there  was  a 
great  diversity  of  opinion  respecting  the  most  proper  mode  of  elect- 
ing counsellors.  Various  modes  had  been  proposed,  and  all  had 
been  rejected  but  that  offered  by  the  select  committee,  and  that 
which  he  had  offered.  There  seemed  to  be  no  alternative  but  to 
adopt  one  of  these  two.  He  proceeded  to  consider  what  were  the 
duties  of  the  council.  In  five  cases  only  which  he  stated,  they  had 
a  negative  on  the  acts  of  the  governor — but  in  all  other  cases  they 
acted  only  as  his  advisers — he  might  accept  their  advice  if  it  was 
wise,  or  might  reject  it  if  he  thought  it  foolish.  It  was  a  funda- 
mental principle  of  republican  governments,  that  powers  which 
could  be  conveniently  and  understandingly  exercised  by  the  people, 
should  be  exercised  by  them  directly.  In  the  mode  proposed  by 
him  there  was  no  inconvenience,  and  if  they  could  exercise  their 
power  understandingly  in  the  choice  of  senators,  they  could  do  it 
,  with  as  much  intelligence  in  the  choice  of  counsellors.  But  it  was 
said  there  would  be  an  embarrassment  from  its  not  being  known 
who  were  to  be  counsellors  and  who  were  to  be  senators.  He  saw 
no  difficulty  on  this  ground,  for  whoever  was  qualified  for  one  office 
would  be  qualified  for  the  other.  It  was  admitted  that  the  counsel- 
lors should  come  from  different  parts  of  the  Commonwealth.  How 
were  they  to  be  obtained  ?  He  thought  it  should  be  in  a  manner 
that  would  make  it  sure  that  the  people  of  the  part  of  the  State 
from  which  they  are  selected  should  have  confidence  in  them. 
This  object  would  not  be  obtained  if  they  were  chosen  by  the  Legis- 
lature. There  should  be  persons  from  the  different  parts  of  the 
Commonwealth  who  would  represent  the  opinions  and  wishes  of  the 
different  parts.  The  minority  as  well  as  the  majority  should  be 
represented.  This  mode  would  gain  the  object,  without  being  liable 
to  the  objections  which  had  been  made  to  that  of  selecting  by  both 
branches  of  the  Legislature.  The  senate  being  an  even  number,  if 
it  had  a  majority  in  favor  of  particular  opinions,  could  always  make 
the  selection  in  such  a  manner  as  to  preserve  that  majority  in  both 
bodies.     There  would  also  usually  be  a  minority  in  both,  and  this  he 


MASSACHUSETTS    CONVENTION.  345 

considered  the  most  beautiful  feature  of  the  scheme.  The  principle 
was  substantially  the  same  which  prevails  in  the  senate  of  the 
United  States,  which  has  a  negative  on  the  nominations  of  the 
president.  The  system  continues  the  advantages  of  a  popular 
scheme,  and  secures,  before  the  choice  is  completed,  the  wisdom  of 
a  deliberative  and  select  body. 

Mr.  S locum  of  Dartmouth  said  he  had  listened  with  a  great  deal 
of  attention  to  gentlemen  who  had  spoken,  and  differed  from  them 
in  a  great  many  positions.  He  should  now  take  his  political  text, 
and  interlard  a  little  Latin  with  it,  as  some  other  gentlemen  had 
done,  vox  populi  vox  Dei.  The  voice  of  the  people  is  the  voice  of 
God.  This  is  the  principle  of  the  constitution.  If  we  do  not  adopt 
the  proposition  before  the  committee,  the  people  will  lose  their  voice. 
There  will  be  140  towns  that  every  other  year  will  have  no  voice. 
Why  should  we  curtail  them  of  their  rights?  The  constitution 
should  be  made  congenial  with  the  genius  of  the  people.  The 
people  will  examine  it  with  a  step  as  steady  as  time,  and  with  an 
appetite  as  keen  as  death.  He  hoped  the  amendment  would  pass, 
and  that  it  would  accord  with  the  genius  of  the  people. 

The  question  on  Mr.  Leland's  amendment  was  taken  and  decided 
in  the  negative — 216  to  103. 

The  question  recurring  on  the  resolution  reported  by  the  select 
committee, 

Mr.  Foster  said  he  should  vote  for  the  resolution,  with  an  under- 
standing, that  in  Convention  he  should  endeavor  to  have  the  con- 
stitution remain  as  it  is,  in  respect  to  the  manner  of  choosing  coun- 
sellors. That  mode  was  the  best,  and  the  one  now  proposed  was 
the  next  best.  The  constitution  had  been  tried  a  great  many  years, 
and  it  had  come  out  of  the  furnace  like  silver  seven  times  tried. 

Mr.  Hubbard  said  he  should  vote  against  the  resolution,  because 
he  thought  the  constitution  required  no  amendment  in  this  respect. 
The  gentlemen  who  wish  the  counsellors  to  be  chosen  by  the  peo- 
ple, and  those  who  wish  them  to  be  chosen  by  the  Legislature, 
have  both  their  desire  in  the  present  mode  ;  and  if  so  much  is  said 
here  about  the  people's  rights,  the  same  argument  will  be  made  a 
handle  of,  in  the  meetings  of  the  people  for  acting  upon  the  amend- 
ments proposed  by  this  resolution. 

Mr.  Little  of  Newbury  spoke  in  favor  of  retaining  the  constitu- 
tion as  it  is,  and  against  the  resolution. 

The  question  was  taken  upon  the  resolution  and  decided  in  the 
affirmative — 187  to  178. 

The  fourth  resolution  of  the  select  committee,  proposing  that  not 
more  than  one  counsellor  shall  be  chosen  out  of  any  one  county, 
was  adopted  without  debate. 

The  fifth  resolution,  respecting  the  time  of  making  elections  by 
the  Legislature,  was  adopted  in  blank. 

On  motion  of  Mr.  Dana  the  committee  rose  and  reported  its 
agreement  to  the  resolutions  of  the  select  committee  with  an  amend- 
ment to  the  first  resolution,  their  disagreement  to  those  offered  by 
44 


346  MASSACHUSETTS    CONVENTION. 

Mr.  Dearborn  ;  that  they  had  acted  upon  the  other  subjects  com- 
mitted to  them  in  the  form  of  amendments  to  the  third  resolution 
of  the  select  committee,  and  they  asked  leave  to  be  discharged  from 
the  further  consideration  of  the  subjects  of  those  amendments. 

The  committee  was  discharged  accordingly  and  the  report  was 
laid  on  the  table. 

Mr.  Sturgis  made  a  motion  for  a  reconsideration  of  the  vote 
passed  yesterday  for  holding  two  sessions  in  a  day.  After  a  slight 
debate  the  vote  was  reconsidered — 175  to  156. 

Leave  of  absence  was  given  to  Mr.  Elihu  Slocum  of  Dartmouth, 
on  account  of  ill  health. 

The  House  adjourned. 


Wednesday,  December  20. 

The  Convention  met  at  8  o'clock  and  attended  prayers  offered 
by  the  Rev.  Mr.  Jenks.     The  journal  being  read, 

Mr.  Starkweather  of  Worthington  moved  that  a  committee  be 
appointed  to  inquire  what  business  now  before  the  Convention  or 
in  committee  the  public  interests  requires  should  be  done,  and  at 
what  time  an  adjournment  or  rising  of  the  Convention  may  take 
place. 

The  resolution  was  agreed  to,  and  Messrs.  Prescott  of  Boston, 
Starkweather  of  Worthington,  Paige  of  Hardwick,  Hoar  of  Con- 
cord, and  Davis  of  Plymouth  were  appointed. 

Mr.  Phelps  of  Chester  offered  the  following  as  a  substitute  for 
the  third  article  of  the  declaration  of  rights,  viz. : 

Although  it  is  the  indispensable  duty  of  all  rational  creatures  to  worship  and  adore 
the  great  Creator,  and  in  order  to  discharge  this  and  other  religious  duties  it  is  neces- 
sary that  men  frequently  assemble  together ;  yet,  every  person  being,  individually,  ac- 
countable to  God,  and  to  God  only,  for  the  discharge  or  the  neglect  of  this  and  every 
other  religious  duty,  the  religion  of  every  man,  and  the  manner  of  discharging  every 
religious  duty,  must  be  left  to  the  reason  and  conscience  of  every  man,  and  so  must  be 
exempt  from  the  control  or  cognizance  of  civil  government :  therefore  no  man  ought 
to  be  compelled  to  attend  any  religious  worship,  or  to  the  erection  or  support  of  any 
place  of  worship,  or  to  the  maintenance  of  any  ministry,  against  his  own  fret  will  and 
consent.  And  no  power  shall  or  ought  to  be  vested  in,  or  assumed  by,  any  civil  au- 
thority, or  magistrate,  that  shall,  in  any  case,  interfere  with,  or  control  the  rights  of 
conscience,  in  the  free  exercise  of  religious  worship  or  discharge  of  religious  duties. 

Provided  always,  That  no  man  or  sect  shall  be  allowed  to  disturb  the  public  peace 
or  molest  others  in  the  exercise  of  their  religious  rights  or  duties. 

Provided  also,  That  those  religious  societies  that  have  heretofore  been  accustomed 
to  support  public  religious  worship,  and  their  public  teachers,  by  a  tax  on  their  mem- 
bers, shall  be  allowed  to  continue  such  practice  or  custom  ;  and  every  person  now  a 
member  of  such  society  shall  continue  so,  until  he  shall  direct  otherwise  by  his 
written  certificate  filed  in  the  town  clerk's  office ;  but  no  other  person  shall  hereafter 
be  considered  as  belonging  to  such  society,  until  he  shall  certify  his  desire  to  become 
a  member  of  such  society  by  writing,  which  writing  shall  be  lodged  with  the  clerk 
of  said  society. 

Referred  to  the  committee  of  the  whole  on  the  declaration  of 
rights. 

Mr.  Saltonstall  of  Salem  moved  the  following  resolution,  viz.  : 


MASSACHUSETTS    CONVENTION.  347 

That  it  is  not  expedient  to  make  any  alteration  in  the  third  article  of  the  bill  of 
rights,  except  to  provide  that  the  word  "  Christian  "  shall  be  substituted  for  the  word 
"  Protestant." 

Referred  to  the  same  committee. 

Mr.  Childs  of  Pittsfield  moved  the  following  as  a  substitute  for 

the  third  article  of  the  declaration  of  rights,  viz. : 

As  the  happiness  of  a  people  and  the  good  order  and  preservation  of*  civil  govern- 
ment essentially  depend  upon  piety,  religion  and  morality,  and  as  these  cannot  be 
generally  diffused  through  a  community  but  by  the  institution  of  the  public  worship 
of  God ;  and  as  it  is  the  inalienable  right  of  every  man  to  render  that  worship  in  the 
mode  most  consistent  with  the  dictates  of  his  own  conscience ;  no  person  shall  by 
law  be  compelled  to  join,  or  support,  nor  be  classed  with,  or  associated  to  any  con- 
gregation or  religious  society  whatever.  But  every  person  now  belonging  to  any 
religious  society  whether  incorporated  or  unincorporated,  shall  be  considered  a  mem- 
ber thereof  until  he  shall  have  separated  himself  therefrom  in  the  manner  hereinafter 
provided. 

And  each  and  every  society  or  denomination  of  Christians  in  this  State,  shall  have 
and  enjoy  the  same  and  equal  powers,  rights  and  privileges  ;  and  shall  have  power 
and  authority  to  raise  money  for  the  support  and  maintenance  of  religious  teachers 
of  their  respective  denominations,  and  to  build  and  repair  houses  of  public  worship, 
by  a  tax  on  the  members  of  any  such  society  only,  to  be  laid  by  a  major  vote  of  the 
legal  voters  assembled  at  any  society  meeting  warned  and  held  according  to  law. 

Provided  nevei'theless,  That  if  any  person  shall  choose  to  separate  himself  from  the 
society  or  denomination  to  which  he  may  belong,  and  shall  join  himself  to  another 
society  of  the  same  or  a  different  denomination,  he  shall  leave  a  written  notice  thereof 
with  the  clerk  of  such  society,  and  shall  thereupon  be  no  longer  liable  for  any  further 
expenses  which  may  be  incurred  by  said  society. 

And  every  denomination  of  Christians  demeaning  themselves  peaceably,  and  as 
good  citizens  of  the  Commonwealth,  shall  be  equally  under  the  protection  of  the 
law.  And  no  subordination  of  any  one  sect  or  denomination  to  another,  shall  ever 
be  established  by  law. 

Referred  to  the  committee  of  the  whole  on  the  declaration  of 
rights. 

Declaration  of  Rights. — On  motion  of  Mr.  Blake  the  Conven- 
tion went  into  committee  of  the  whole,  on  the  report  of  the  select 
committee  to  whom  was  referred  the  declaration  of  rights,  Mr.  Var- 
num  in  the  chair. 

The  report  having  been  read, 

Mr.  Blake  rose.  He  said  that  he  was  one  of  the  select  committee 
to  whom  was  referred  the  interesting  and  important  subject  involved 
in  the  nine  resolutions  now  before  the  committee  of  the  whole,  and 
in  the  absence  of  the  chairman  of  the  select  committee,  in  conse- 
quence of  severe  indisposition,  and  at  his  recmest,  he  stood  there,  as 
his  humble  representative,  to  state  his  views,  and  those  of  the  com- 
mitee  on  this  subject.  He  regretted  extremely  the  absence  of  that 
gentleman.  It  was  a  subject  in  which  he  took  great  interest,  and 
on  which  he  would  have  thrown  much  light.  The  select  committee 
were  impressed  with  the  great  importance  and  with  the  embarrass- 
ments of  the  subject,  and  with  the  weighty  consequences  which 
might  result  from  any  rash  alterations  which  might  be  made  in  this 
part  of  the  constitution.  They  admired  the  soundness  of  the  prin- 
ciples laid  down  in  relation  to  the  support  of  religious  worship — 
principles  which  are  applicable,  not  only  to  this  community,  but  to 
every  civilized  community  in  the  world,  and  also   the  manner  in 


348  MASSACHUSETTS     CONVENTION. 

which    those    principles  were  expressed.       The    language  was  so 
forcible,    and    the    conclusions   so   irresistible  that    the    committee 
were  desirous  rather  to  vindicate  the   alterations  which  they  had 
proposed,  than  to  apologize  for  not  offering  further  alterations.     He 
would  first  go  over,  briefly,  the   six  or  seven  immaterial  subjects 
which  the  committee  had  recommended  to  the  attention  of  the  Con- 
vention, and  afterwards  proceed  to  the  three  principal  propositions 
which  the  committee  had  submitted.     The  first  resolution  proposes 
to  alter  the  word  "  subject,"  in  the  several  places  where  it  occurs 
in  this  part  of  the  constitution,  to  "citizen"  or  "person."     This 
alteration  had  been  proposed,  under  the  idea  that  the  constitution 
was  to  be  proposed  in  a  new  draft,  and  that  in  that  case  the  altera- 
tion would  be  proper.     In  the  fifth  resolution  a  slight  change  is 
proposed  in  relation  to  the  manner  of  making  defence  in  criminal 
cases.     It  was  thought  proper  to  extend  to  the  person  accused  the 
right  of  being  heard  by  himself  and  his  counsel,  instead  of  by  him- 
self or  his  counsel.     In  the  sixth  resolution  they  had  proposed  to 
make  an  alteration  in  the  article  relating  to  the  right  of  maintaining 
armies,  so  that  it  should  conform  to  the  constitution  of  the  United 
States.    Although,  whatever  in  the  constitution  is  repugnant  to  that 
of  the  United  States  was  ipso  facto  repealed,  by  the  adoption  of  the 
latter,  it  was  nevertheless  proper,  if  the  instrument  was  to  be  drafted 
anew,  that  it  should  be  made  to  conform  in  its  terms  to  what  is  its  le- 
gal effect.     The  alterations  specified  in  the  seventh,  eighth  and  ninth 
resolutions  were  proposed  with  the  same  view,  and  for  the  same  ob- 
ject.   They  were  all  proposed  on  the  supposition  that  the  constitution 
would  be  offered  to  the  people  in  a  new  draft,  and  if  that  course  was 
not  to  be  adopted  they  were  of  little  consequence.    He  next  proceeded 
to  consider  the  second,  third  and  fourth  resolutions,  which  propose 
amendments  in  the   second  and  third  articles  of  the  declaration  of 
rights,  relating  to  the  maintenance  of  public  worship.     The  first  con- 
sideration which  presented  itself  was,  that  these  articles  do  not  contain 
a  grant,  but  a  restraint  of  power.     Those,  therefore,  who  propose  to 
expunge  them,  do  not  consider  the  effect  of  such  a  measure.     They 
restrain  the  power  of  the  Legislature  in  relation  to  religious  subjects. 
There  is  another  article  that  empowers  the  Legislature  to  make, 
ordain  and  establish  all  manner  of  wholesome  and  reasonable  laws, 
as  they  shall  judge  to  be  for  the  good  and  welfare  of  the  Common- 
wealth.    This  power,  without  any  restraint  in  relation  to  matters 
of  religion,  would  enable   them  to  give  a  code  of  laws  for  religious 
worship,  without  regard  to   the  rights  and  opinions  of  individuals. 
It  seemed  to  a  majority  of  the  committee,  that  of  all  subjects  which 
could  be  imagined,  that  of  public  worship  was  one  which  most  re- 
quired to  be  provided  for  in  the  constitution.     There  was  provision 
for  securing  the  right  of  trial  by  jury — the  freedom  of  the  press — 
the  support   of  literature — and    there  was  no  reason  for  omitting  to 
provide  for  the  support  of  public  worship  and  religious  instruction. 
The  reason  of  the  third  article  was  unanswerable.     "As  the  happi- 
ness of  the  people  and  the  good  order  and  preservation  of  civil  gov- 


MASSACHUSETTS    CONVENTION.  349 

ernment  essentially  depend  upon  piety,  religion  and  morality  ;  and 
as  these  cannot  be  generally  diffused  through  the  community  but 
by  the  institution  of  a  public  worship  of  God  and  of  public  instruc- 
tions in  piety,  religion  and  morality ;  therefore  the  people  of  the 
Commonwealth  have  a  right  to  invest  the  Legislature  with  power  to 
require  towns,  parishes  and  precincts  to  make  suitable  provision  for 
the  institution  of  the  public  worship  of  God."  The  principle  was 
laid  down  in  so  forcible  and  irresistible  a  manner,  that  no  one  could 
deny  its  truth.  No  gentleman  of  the  committee  questioned  the  cor- 
rectness of  either  of  these  principles.  It  seemed  as  if  the  position 
was  hardly  broad  enough.  Instead  of  saying  that  the  happiness  of 
a  people  essentially  depends  on  piety,  religion,  and  morality,  it  might 
be  insisted  that  without  them  there  could  be  no  happiness  in  any 
community  on  earth  or  in  heaven.  If  it  was  true  that  religion  and 
morality  were  essential  to  the  happiness  of  a  people,  and  the  good 
order  and  preservation  of  government,  it  was  the  right  and  duty  of 
the  people,  in  laying  the  foundations  of  their  government,  to  deal 
with  them  in  such  a  manner  as  would  secure  their  influence.  The 
second  proposition  was,  that  the  institution  and  support  of  public 
worship  were  necessary  for  the  diffusion  of  piety,  religion  and  mo- 
rality. If  any  worship  was  necessary  to  the  good  order  and  happi- 
ness of  a  community,  it  must  be  public  worship.  The  worship  of 
the  cell  and  the  cloister  had  nothing  to  do  with  society.  The  third 
proposition  was  an  inference  from  the  other  two — it  is  therefore  the 
right  and  duty  of  the  people  to  invest  the  Legislature  with  power  to 
make  provision  for  the  support  of  public  worship.  Mr.  B.  asked  if 
the  conclusion  was  not  such  an  one  as  every  gentleman  must  draw 
from  the  premises.  It  was  however  provided  in  other  parts  of  the 
instrument  that  every  individual  should  be  allowed  to  worship  ac- 
cording to  the  dictates  of  his  own  conscience,  and  all  that  was  pro- 
posed, was,  that  every  individual  should  be  required  to  contribute 
in  some  form  or  other  towards  the  support  of  public  worship.  Some 
gentlemen  of  the  committee  did  question  the  correctness  of  the  con- 
clusion drawn  by  the  framers  of  the  constitution.  They  argued  that 
religion  would  take  care  of  itself,  and  therefore  everything  might  be 
safely  left  to  each  individual  to  give  it  that  support  which  he  might 
see  fit.  But  a  majority  of  the  committee  were  clearly  of  opinion 
that  some  legal  provision  for  the  support  of  public  worship  was 
necessary.  But  if  there  was  any  subject  in  relation  to  which  there 
should  be  an  injunction  on  all  to  contribute  their  aid,  this  merited 
the  highest  place  ;  in  relation  to  all  other  institutions — courts  of  jus- 
tice, schools,  highways,  &c. — it  was  admitted  that  every  individual 
should  be  compelled  to  contribute  towards  their  support.  If  relig- 
ious institutions  should  be  left  to  the  voluntary  support  of  individ- 
uals, it  should  be  so  with  all  others.  The  only  subject  of  material 
difference  of  opinion  in  the  committee,  was,  how  public  worship 
might  be  supported,  by  enjoining  the  duty  on  towns  and  parishes ; 
and  on  the  other  hand  the  rights  of  conscience,  which  the  committee 
were   unanimously   of   opinion    ought    not   to   be   invaded,   should 


350  MASSACHUSETTS    CONVENTION. 

be  protected.  A  fourth  resolution  was  designed  to  avoid  this  diffi- 
culty. It  was  the  result  of  a  compromise  of  opinions.  The  major- 
ity in  favor  of  the  report  was  not  large.  It  was  thought  that  there 
was  a  defect  in  this  respect,  in  the  provisions  of  the  constitution  ; 
an  individual,  who  was  satisfied  with  the  religious  instructions  pro- 
vided by  the  town  or  parish,  was  nevertheless  obliged  to  contribute 
to  their  support,  unless  he  united  himself  to  a  society  of  some  different 
sect.  This  difficulty  was  partially  remedied  by  the  statute  of  1811. 
But  there  was  some  doubt  whether  a  person  was  exempted  from 
taxation  in  the  parish  to  which  he  belonged,  unless  he  joined  a 
society  of  a  different  sect  or  denomination.  It  was  proper  that  the 
provision  should  be  clear,  and  not  liable  to  misinterpretation,  and 
made  permanent  by  being  incorporated  in  the  constitution.  It  ad- 
mitted of  doubt,  also,  what  formed  a  religious  society.  The  com- 
mittee had  endeavored  to  remove  all  ambiguity  on  this  point,  by 
establishing  a  mode  in  which  such  society  might  be  formed.  Mr. 
B.  said  he  had  made  these  remarks  in  compliance  with  the  request 
of  the  chairman  of  the  select  committee.  There  was  another  reso- 
lution respecting  the  clause  which  invests  the  Legislature  with  au- 
thority to  enjoin  attendance  on  public  worship.  This  was  consid- 
ered to  be  a  defect  in  the  constitution  and  it  was  thought  proper  to 
annul  it. 

The  first  resolution,  which  proposes  to  strike  out  the  word  "  sub- 
ject "  and  insert  "  citizen  "  or  "  person  "  in  the  several  places  where 
it  occurs  in  the  declaration  of  rights,  was  taken   into   consideration. 

Mr.  Fay  of  Cambridge  opposed  the  resolution.  He  said  the  com- 
mittee had  proposed  the  alteration  on  the  supposition  that  the  con- 
stitution was  to  be  drafted  anew.  It  had  been  determined  that  this 
should  not  be  done.  But  he  opposed  the  resolution  on  another 
ground.  The  word  "subject"  was  the  proper  word.  "  Citizen  " 
was  a  word  of  more  limited  meaning.  The  word  subject  compre- 
hends every  person  who  lives  under  any  government  ;  no  other 
word  was  so  technically  accurate,  and  so  applicable  to  the  places 
where  it  occurs. 

Mr.  Savage  of  Boston  said  that  the  word  citizen  was  a  very  just 
and  proper  word.  In  the  various  places  in  which  it  was  found  in 
the  constitution,  the  framers  of  this  instrument  had  used  the  word 
citizen,  when  they  spoke  of  persons,  who  were  to  enjoy  certain 
rights  ;  and  subject,  when  they  spoke  of  them  as  bound  to  perform 
duties.  The  latter  word  occurs  eleven  times  in  the  constitution, 
and  in  several  of  them  it  cannot  with  propriety  be  changed  for  citi- 
zen or  person.  The  declaration  of  rights  contains  an  assertion  of 
general  principles.  In  several  instances,  where  the  word  occurs,  the 
passage  is  a  translation  from  Magna  Charta,  and  it  could  not  with 
propriety  be  translated  citizen.  Nothing  would  be  gained  by  a 
change  of  the  phraseology.  There  was  no  pretence  that  it  was  un- 
intelligible. The  assertion  of  a  principle,  in  old  language,  was  as 
good  as  in  new.  It  was  an  object  to  preserve  the  language,  and 
keep  it  from  changing.     He  quoted  passages  where  the  word  could 


MASSACHUSETTS    CONVENTION.  351 

not  with  propriety  be  changed,  for  example  :  "  demeaning  themselves 
peaceably  and  as  good  subjects,"  citizens  was  of  too  narrow  mean- 
ing. It  would  not  include  foreigners,  yet  foreigners,  demeaning 
themselves  peaceably,  should  be  entitled  to  the  protection  of  the  law  ; 
change  it  to  persons  and  it  would  make  nonsense.  He  quoted  other 
passages,  and  contended  that  in  all  of  them  the  word  subject  was 
properly  used,  and  that  citizen  was  always  used  in  the  proper  places. 

Mr.  Austin  of  Charlestown  hoped  the  resolution  would  be  adopted. 
We  were  citizens  of  the  United  States  and  not  subjects.  Subject 
was  a  child  of  monarchy.  This  appeared  from  its  etymology.  Un- 
der the  Roman  commonwealth  no  person  entitled  to  the  rights  of 
citizenship  was  considered  a  subject. 

Mr.  Freeman  of  Sandwich  said  he  had  considered  the  subject 
with  some  attention  before  the  report  of  the  committee,  and  since. 
He  could  see  no  reason  for  changing  the  language. 

The  question  was  taken  on  the  resolution  and  decided  in  the 
negative,  127  to  208. 

The  second  resolution  was  then  taken  up,  which  provides  for  such 
an  amendment  in  the  constitution  that  the  part  of  it  which  invests 
the  Legislature  with  the  power  to  enjoin  on  individuals  an  attendance 
on  public  worship  shall  be  considered  as  annulled. 

Mr.  Flint  opposed  the  resolution.  If  it  was  the  duty  of  a  part  of 
the  people  to  attend  public  worship  it  was  the  duty  of  the  whole. 
The  Legislature  ought  to  have  power  to  pass  laws  to  compel  the  ob- 
servance of  the  Sabbath,  and  a  due  attendance  on  public  worship. 
It  was  for  the  benefit  of  society  that  they  should  have  this  power. 
He  hoped  this  part  of  the  constitution  would  not  be  struck  out,  but 
that  it  would  be  suffered  to  stand  to  the  credit  of  our  ancestors  who 
placed  it  there  ;  and  that  it  might  go  down  to  our  children  and  pos- 
terity. 

Mr.  Dawes  of  Boston  did  not  wish  to  be  considered  as  answering 
the  argument  of  the  gentleman  from  Reading,  for  he  had  not  the 
pleasure  of  hearing  it.  But  he  wished  to  make  a  few  remarks  of 
his  own.  This  part  of  the  third  article  was  not  a  favorite  of  his. 
It  appeared  to  him  to  be  very  harmless,  but  though  it  could  never  do 
any  injury,  he  did  not  like  to  see  it  in  the  constitution,  because  it 
could  never  do  any  good.  Similar  laws  had  done  no  good  in  Eng- 
land. He  quoted  several  British  statutes  to  show  the  origin  of  the 
provision,  none  of  which,  as  far  as  he  could  learn,  could  ever  be 
carried  into  effect.  The  reason  was  obvious.  The  person  accused 
had  only  to  plead  conscience,  and  the  civil  arm  could  not  reach 
him. 

Mr.  Hubbard  of  Boston  thought  it  a  subject  which  deserved  some 
reflection.  If  the  passage  in  question  was  a  dead  letter  as  had  been 
contended,  it  would  do  no  harm.  It  was  not  consistent  with  the 
professions  which  gentlemen  had  made,  to  strike  it  out  unless  expe- 
rience had  shown  that  it  did  some  injury.  The  language  is  not  im- 
perative. It  provides  only  that  the  Legislature  shall  have  the  power, 
but  does  not  require  that  they  shall  exercise  it.     Do  we  subject  the 


352  MASSACHUSETTS    CONVENTION. 

people  to  any  inconvenience  by  giving  the  Legislature  a  right  to  pass 
laws  of  the  description  mentioned  ?  Gentlemen  say  that  the  Legis- 
lature ought  to  have  power  to  provide  for  the  support  of  public  wor- 
ship. It  did  not  seem  wise  to  give  the  right  to  compel  the  people  to 
support  public  worship,  and  not  to  give  the  right  to  compel  attend- 
ance. It  was  a  power  which  might  with  the  same  propriety  be 
granted.  If  it  was  not  necessary  that  the  Legislature  should  possess 
the  power  in  the  present  state  of  society,  it  was  impossible  to  say 
that  thirty  years  hence  the  prevalence  of  immorality  and  vice  might 
not  be  such  as  to  make  it  extremely  desirable.  The  authority  be- 
ing now  expressly  granted  if  that  was  struck  out  of  the  constitution, 
the  inference  would  be  that  the  Legislature  did  not  possess  the  power. 
He  held,  if  we  gave  the  Legislature  power  to  make  laws  it  was  our 
bounden  duty  to  give  power  to  carry  them  into  effect.  He  was 
therefore  against  the  resolution. 

Mr.  Nelson  of  Maiden  was  in  the  habit  of  considering  religion  as 
a  matter  between  God  and  the  individual.  When  any  one  makes 
up  his  mind  that  it  is  his  duty  to  worship  his  Creator  he  decides  also 
on  the  manner  in  which  it  is  proper  to  worship  him.  He  cannot 
delegate  the  right  of  doing  this  to  a  legislature.  He  had  no  thought 
when  he  was  choosing  a  representative,  that  he  was  choosing  a  man 
to  legislate  about  matters  of  religion.  He  had  already  settled  about 
that.  He  questioned  the  right  of  the  people  to  invest  the  Legisla- 
ture with  power  to  authorize  and  require  towns  and  parishes  to  make 
provision  for  the  support  of  teachers  of  religion  and  morality.  Mr. 
Nelson  was  here  called  to  order. 

The  Chairman  said  that  if  he  was  alluding  to  the  other  resolu- 
tion merely  for  the  purpose  of  argument,  and  with  the  view  of  illus- 
trating his  ideas  on  the  second  resolution,  he  was  in  order,  but  it 
was  not  in  order  now  to  debate  the  third  resolution. 

Mr.  Nelson  sat  down. 

Mr.  Williams  of  Beverly  spoke  in  favor  of  the  resolution.  He 
did  not  think  the  clause  in  the  constitution  could  be  enforced,  and  if 
it  could,  it  was  contrary  to  the  spirit  of  our  religion. 

The  question  was  then  taken  on  the  resolution  and  it  was  agreed 
to— 296  to  29. 

Mr.  Saltonstall  moved  to  amend  the  report  by  striking  out  the 
third  and  fourth  resolutions,  and  substituting  a  resolution  declaring 
that  it  is  not  expedient  to  make  any  further  amendment  to  the  third 
article  of  the  declaration  of  rights  than  to  substitute  the  word 
"  Christian  "  for  "  Protestant,"  and  also  to  provide  that  real  estate 
shall  be  taxed  for  the  support  of  public  worship  in  the  town,  parish 
or  precinct  in  which  it  shall  be  situated. 

Mr.  Hoar  of  Concord  said  it  appeared  to  him,  that  the  amendment 
proposed  by  the  gentleman  from  Salem,  must  necessarily  bring  the 
whole  subject  of  the  third  article  into  discussion.  If  it  should 
be  adopted,  it  would  show  that  the  committee  were  in  favor  of  the 
article  as  it  now  stands,  in  preference  to  the  substitution  proposed 
by  the  select  committee,  or  by  the  gentleman  from  Chester,  or  from 


MASSACHUSETTS    CONVENTION.  353 

Pittsfield,  and  to  any  other  which  may  be  offered.  He  was  desirous 
that  the  present  amendment  might  be  adopted.  He  was  on  the  select 
committee,  but  did  not  vote  with  the  majority  in  reporting  these  res- 
olutions. If  they  were  wrong,  therefore,  he  was  not  responsible  for 
their  defects,  and  if  right,  he  was  entitled  to  no  part  of  the  credit. 
He  considered  the  alteration  proposed  by  the  report  of  the  committee 
to  be  in  substance  pernicious.  It  was  going  to  change  one  of  the 
fundamental  principles  of  our  government.  If  there  was  in  our 
constitution  one  principle  more  than  another  on  which  the  public 
happiness  and  welfare  depended,  and  which  was  entitled  to  greater 
favor,  he  thought  it  was  this ;  and  it  was  here  peculiarly  proper  to 
call  on  gentlemen  for  an  application  of  the  rule  so  often  brought 
forward,  that  before  any  principle  in  the  constitution  was  changed, 
it  ought  to  be  shown  clearly  and  decisively  that  experience  had 
proved  it  capable  of  producing  an  ill  effect  on  the  community.  If 
this  was  acknowledged  to  be  an  important  and  an  operative  principle 
and  not  a  dead  letter,  and  if  the  effect  produced  by  it  was  not  a  bad 
one,  but  the  contrary,  it  ought  to  be  retained.  He  was  unwilling  to 
destroy  the  effect  of  this  principle.  We  had  had  experience  of  its 
beneficial  operation,  not  for  forty  years  only,  but  for  more  than  a 
century  ;  and  he  would  not  exchange  this  experience  for  any  theory 
however  wise  in  appearance.  Theory  might  deceive,  but  experience 
could  not.  And  if  any  experience  was  useful,  that  of  the  particu- 
lar community  for  which  the  constitution  was  intended,  was  to  be 
preferred.  Although  other  countries  may  have  been  able  to  do  with- 
out this  principle,  it  by  no  means  followed  that  it  would  do  no  good 
here.  He  knew  that  a  distinguished  individual  in  Great  Britain  had 
professed  his  ability  to  make  constitutions  and  laws  for  all  latitudes, 
and  all  habits  and  manners  that  could  be  named ;  he  should  how- 
ever give  more  credit  to  our  own  experience.  If  gentlemen  who 
wish  a  change  should  show  the  operation  of  the  third  article  to  be 
prejudicial  to  this  country,  he  should  cheerfully  vote  with  them  ; 
otherwise  he  should  think  it  ought  to  be  retained.  He  said  it  had 
been  judicially  determined  that  by  the  law  of  1811,  real  estate,  be- 
longing to  non-resident  proprietors  of  a  different  sect  or  denomina- 
tion, cannot  be  taxed  for  the  support  of  public  worship  in  the  town 
where  it  is  situated.  This  report  proposes  to  extend  to  all  Christians, 
the  rights  which  were  peculiar  to  persons  of  a  different  denomina- 
tion from  Congregationalists.  It  gives  power  to  a  Congregationalist, 
for  any  reason,  to  change  his  religious  instructor,  and  prevents  his 
being  taxed  in  any  place  except  where  he  attends  public  worship ; 
the  consequence  will  be,  that  all  lands  of  non-resident  proprietors 
will  be  exempted  from  taxation  for  the  support  of  religious  worship 
in  any  place.  Was  not  this  a  great  evil  ?  He  could  name  towns 
in  which  one  third  part  of  the  land  was  owned  by  citizens  of  differ- 
ent towns,  and  was  assessed  for  the  support  of  public  worship  in  the 
towns  where  it  was  situated.  Deduct  this  portion  of  the  taxes,  and 
in  many  towns  it  would  in  a  great  degree  derange  their  system  of 
supporting  public  worship.  It  might  be  supposed  that  this  evil 
45 


354  MASSACHUSETTS    CONVENTION. 

would  be  remedied  on  account  of  tenants  being  liable  to  be  taxed. 
But  there  were  a  great  many  towns  to  which  he  referred,  where  the 
lands  were  not  occupied  by  tenants,  but  used  by  the  non-resident 
owners  merely  as  pastures  for  cattle.     Another  inconvenience  and  in- 
justice would  arise  from  adopting  the  report  that  these  lands  would 
escape  all  taxation,  as  the  assessors  in  the  towns  where  the  owners 
lived  would  not  know  of  lands  so  situated,  or  would  be  ignorant  of 
their  value.     For  this  reason  alone,  the  report  ought  not  to  be  ac- 
cepted, and  it  was  incumbent  on  those  in  favor  of  it,  to  show  some- 
thing equivalent  to  the  derangement  to  the  system  of  taxation.    But 
although  this  inequality  would  be  created  by  the  report,  yet  this  was 
but  the  dust  of  the  balance,  compared  with  the  rest  of  the  conse- 
quences.    The  report  pays  homage  to  religion  generally,  but  does 
not  mention  the  Christian  religion  in  particular.     That  however 
was  probably  intended.     In  terms,  it  admits  the  importance  of  reli- 
gion to  the  support  of  civil  government.     In  terms,  it  requires  the 
Legislature  to  provide  for  the  maintenance  of  public  worship,  because 
otherwise,  religion  cannot  be  maintained,  or  civil  government  be 
supported.     So  far  he  agreed  with  the  report,  and  so  far  the  report 
agrees  with  the  constitution  ;  and  no  alteration   is  necessary.     His 
objection  was,  that  after  asserting  the  great  principles  the  committee 
go  on  to  make  provisions  which  directly  contradict  and  contravene 
them.    If  the  report  shall  be  accepted,  probably  the  Legislature  would, 
in  obedience  to  it,  pass  a  law  similar  to  that  of  1800,  requiring  towns 
to  support  public  worship  if  of  sufficient  ability.     The  report  too 
provides  that  any  persons  not  less  than  twenty  may  form  a  society, 
and  be  free  from  taxation  for  any  other  society.     It  does  not  require 
the  aid  of  imagination  to  conjecture  what  will  be  the  effect  of  these 
provisions,  for  we  know  by  facts,  that  men  join  another  society,  so 
that  the  town  becomes  unable  to  support  the  religious  teacher,  and 
the  society  they  join  is  unable.     If  the  town  is  indicted  for  not  sup- 
porting religious  worship,  they  show  their  inability  and  are  acquit- 
ted.    What  is  the  provision  you  make  ?     You  tell  the  towns  that  it 
is  their  duty  to  support  public  worship,  and  then  you  in  effect  say 
that  no  person  need  pay  for  that  purpose  unless  he  pleases  ;  and  the 
practical  operation  has  been  accordingly.     But  suppose  the  Legisla- 
ture say  that  every  town  shall  support  public  worship ;  leaving  out 
the  clause  about  sufficient  ability,  yet  leaving  every  one  at  liberty  to 
go  where  he  pleases.     What  is  the  situation  of  a  parish  where  they 
keep  withdrawing,  and  the  more  there  are  who  go,  the  more  are  in- 
duced to  go  ?     If  the  minister  asks  for  his  salary  he  is  requiring  the 
pound  of  flesh ;  if  he  does- not,  he  leaves  his  parish  and  there  is  no 
minister.     Mr.  H.  spoke  of  the  detriment  which  would  happen  to 
that  class  of  society  who  depend  for  their  religious  instruction  on 
public  worship.     He  spoke  only  as  a  citizen  and  not  as  a  divine. 
He  considered  religious  instruction,  in  a  political  point  of  view,  to 
be  as  necessary  as  literary  instruction.     It  might  be  said  that  reli- 
gion would  be  supported  voluntarily.     He   wished  for  better  evi- 
dence of  the  fact  than  he  had  had  ;  and  if  true  now,  it  might  not  be 


MASSACHUSETTS    CONVENTION.  355 

hereafter.  Much  had  been  said  about  inalienable  rights ;  he 
asked  if  this  meant  that  society  could  not  do  what  was  most  for  its 
good  ?  If  a  man  could  not  give  up  any  rights  for  his  greatest  bene- 
fit ?  No  interference  with  the  rights  of  conscience  was  intended  or 
felt  from  the  first  article.  To  say  that  the  Legislature  shall  not  regu- 
late anything  relating  to  religion,  was  to  say  that  they  shall  not  en- 
courage any  virtues  or  punish  any  vices  or  crimes.  If  we  could 
trust  to  anything  in  history,  it  was  to  this,  that  our  prosperity,  and 
what  most  distinguishes  Massachusetts,  is  owing  to  our  provision  for 
the  support  of  religion  and  morality.  He  considered  these  a  great 
support  of  civil  society.  He  believed  the  only  alternative  was,  to 
support  it  by  religion  and  morality,  or  by  a  standing  army.  The 
proposition  of  the  gentleman  from  Salem,  was  only  to  leave  the  con- 
stitution where  it  was  before.  It  was  not  to  repeal  the  law  of  1811, 
which  he  considered  as  a  bad  law,  but  only  to  leave  the  Legislature 
the  power,  if  necessary,  instead  of  tying  up  their  hands  for  all  fu- 
ture time.  He  compared  the  provision  for  religious  worship  to  that 
for  town  schools  :  those  who  have  no  children  pay  as  great  a  tax  as 
if  they  had  ;  and  if  any  person,  having  children,  is  not  satisfied 
with  the  schoolmaster  appointed  by  the  town,  he  takes  away  his 
children,  but  never  thinks  of  withholding  his  money  from  the  sup- 
port of  the  town  schools  ;  and  yet  the  principle  is  the  same  ;  it  is 
in  fact  a  stronger  case  ;  for  a  man  may  withdraw  to  any  religious 
society,  and  pay  his  money  where  he  pleases,  only  he  must  pay 
somewhere.  The  amendment  of  the  gentleman  from  Salem,  Mr. 
H.  said,  would  supersede  all  others.  He  should  prefer  the  proposi- 
tion of  the  gentleman  from  Pittsfield  to  the  report  of  the  committee. 
It  would  do  no  man  honor  to  vote  for  the  report.  He  accused  no  one 
of  the  committee  of  improper  views.  He  knew  it  was  not  the  case  ; 
but  if  they  had  lived  in  the  vicinity  to  see  the  operation  of  the  law 
of  1811,  they  would  all  agree  in  retaining  the  provision  in  the  con- 
stitution. No  evil  could  be  pointed  out  from  suffering  it  to  remain, 
to  be  compared  with  those  which  would  arise  from  abolishing  it. 

Mr.  Mudge  was  opposed  to  the  adoption  of  the  amendment  of  the 
gentleman  from  Salem,  because  it  would  tend  to  introduce  great 
confusion  and  evil.  It  proposed  to  give  power  to  societies  to  tax 
real  estate.  Persons  of  all  denominations  have  made  that  provision 
for  the  support  of  public  worship  which  they  think  necessary.  They 
do  not  wish  to  incur  the  trouble  and  expense  of  assessing  taxes, 
that  they  may  draw  them  out  for  the  support  of  religious  worship 
which  they  have  already  provided  for  in  other  modes.  The  argu- 
ments which  the  gentleman  who  had  last  spoke  had  used  were  precisely 
those  which  he  would  have  used,  to  show  that  the  provisions  of  the 
constitution  ought  not  to  be  retained.  He  could  show  in  every  part 
of  the  Commonwealth  instances  in  which  great  injustice  and  oppres- 
sion had  been  suffered  by  individuals  ;  he  could  point  to  an  individual 
on  the  floor  who  had  had  his  property  taken  from  him  to  the  amount 
of  300  dollars  for  the  support  of  public  worship  in  a  form  which  he 
did  not  approve.     But  who  shall  be  entitled  to  the  right  of  taxing 


356  MASSACHUSETTS    CONVENTION. 

the  whole  property  of  the  Commonwealth  ?  In  the  town  to  which  he 
belonged  there  were  five  distinct  religious  societies.  Which  of  them 
should  have  the  right  to  impose  this  tax  ?  Some  of  the  denominations 
of  Christians  were  conscientiously  opposed  to  the  right  of  imposing 
any  tax  for  the  support  of  religion.  The  right  therefore  of  taxing 
would  operate  unequally.  The  Episcopalians,  the  Baptists,  the 
Friends,  had  never  exercised  the  right.  None  he  believed  but  the 
Congregational  denomination  had  exercised  the  right.  It  was  there- 
fore granting  to  them  an  exclusive  right.  It  had  been  contended 
that  it  was  necessary  for  the  support  of  religion.  He  did  not  agree 
that  it  was  necessary.  He  contended  that  it  was  not.  He  found 
that  all  religious  communities,  besides  supporting  their  own  religious 
teachers,  contributed  large  sums  to  the  extension  of  the  knowledge 
of  Christianity  to  other  countries.  It  was  not  necessary  for 
securing  the  maintenance  of  the  ministry,  and  it  had  a  tendency  to 
produce  strife  and  contention.  Persons  were  taxed  in  societies,  who 
were  accustomed  to  attend  religious  worship  in  other  societies,  and  this 
produced  jealousy,  strife,  ill  feelings  towards  each  other.  The  min- 
isters in  many  instances  do  not  wish  it.  They  had  rather  labor 
with  their  own  hands  for  their  support,  than  that  the  stock  and 
property  of  their  flock  should  be  taken  and  sold  for  their  mainten- 
ance. He  wished  to  strike  from  the  constitution  a  provision  that 
was  not  necessary  for  the  support  of  religion,  and  which  tended  to 
produce  strife  and  jealousy.  It  would  reduce  all  the  religious  com- 
munities to  a  level,  and  would  introduce  a  spirit  of  harmony  and 
emulation  for  the  support  of  religion,  and  he  believed  in  a  short  time 
the  amount  of  voluntary  contribution  for  religious  purposes,  would 
be  greater  than  can  now  be  raised  by  the  hand  of  power.  If  we 
would  attend  to  the  subject  in  its  operation  on  religion,  we  should 
find  it  would  have  a  good  effect,  to  remove  all  restrictions,  which 
operate  to  give  exclusive  privileges  to  a  particular  denomination. 
He  wished  to  have  the  constitution  so  amended  that  there  should 
be  no  inconsistency  in  it,  and  that  each  religious  community  should 
be  entitled  to  equal  privileges. 

The  committee  rose — 223  to  82 — reported  progress  and  had  leave 
to  sit  again. 

The  House  then  voted  to  adjourn — 203  to  129. 


Thursday,  December  21. 

The  House  met  at  9  o'clock,  and  attended  prayers  offered  by  the 
Rev.  Mr.  Jenks.     After  which  the  journal  of  yesterday  was  read. 

Mr.  Beach  of  Gloucester  offered  a  resolution  for  altering  the 
constitution  so  as  to  provide  that  all  judicial  officers,  duly  appointed, 
commissioned  and  sworn,  shall  hold  their  offices  for  the  term  of 

years  from  the  day  of  and  upon  the  expira- 

tion of  any  commission,  the  same  may,  if  necessary,  be  renewed,  or 
another  person  appointed,  as  shall  most  conduce  to  the  well  being  of 


MASSACHUSETTS     CONVENTION.  357 

the  Commonwealth,  provided  that  no  person  shall  be  appointed  or 
continue  in  office  after  he  shall  have  arrived  to  the  age  of 
years.     Referred  to  the  committee  of  the  whole  on  the  judiciary 
power,  and  ordered  to  be  printed. 

On  motion  of  Mr.  Dana  the  House  resolved  itself  into  a  committee 
of  the  whole  on  the  unfinished  business  of  yesterday:  Mr.  Varni  ih 
in  the  chair. 
The  question  was  upon  the  amendment  offered  by  Mr.  Saltonstall. 
Mr.  Parker  of  Boston  moved  to  pass  over  this  amendment  for 
the  present,  as  it  created  embarrassment  in  the  mode  of  treating  the 
subject.  Some  other  propositions  which  had  been  made  were 
previous  in  their  nature. 

Mr.  Childs  of  Pittsneld  opposed  the  motion. 

Mr.  Wilde  of  Newburyport  hoped  that  the  motion  to  pass  over 
the  resolution  would  prevail.  He  was  surprised  that  in  the  debate 
yesterday  the  general  argument,  whether  the  Legislature  should  have 
power  to  compel  people  to  contribute  to  the  support  of  religious 
instruction  and  public  worship,  was  gone  into  in  support  of  the  mo- 
tion of  the  gentleman  from  Salem  to  amend  the  report  of  the  select 
committee.  That  report  proposes  not  only  to  authorize  the 
Legislature  to  make  provision  for  the  support  of  public  teachers  of 
piety,  religion  and  morality,  but  enjoins  it  on  them  as  a  duty.  The 
only  ground  on  which  the  argument  had  been  taken  up,  was,  that 
the  resolution  offered  by  the  select  committee  makes  such  a  modi- 
fication of  the  powers  granted,  as  to  destroy  their  effect.  He  did 
not  think  that  the  powers  proposed  to  be  granted  to  the  Legislature 
would  be  destroyed  by  the  provisions  contained  in  the  resolution, 
though  this  effect  would  undoubtedly  be  in  some  measure  impaired. 
He  thought  that  the  committee  ought  to  come  first  to  the  general 
question,  whether  any  such  power  should  be  granted  to  the  Legis- 
lature. For  this  purpose  it  would  be  necessary  to  take  up  first, 
either  the  proposition  of  the  gentleman  from  Chester,  or  that  of 
the  gentleman  from  Pittsfield.  They  appeared  to  him  to  be  proposi- 
tions previous  in  their  nature  to  those  involved  in  the  resolutions 
of  the  select  committee,  and  the  amendment  proposed  by  the 
gentleman  from  Salem. 

The  motion  was  agreed  to — 159  to  110. 

Mr.  Phelps  of  Chester  said  that  when  he  drew  up  the  resolution 
which  he  offered  yesterday,  he  did  not  know  that  any  other  gentle- 
man was  preparing  one  for  the  same  object.  The  resolution  offered 
by  the  gentleman  from  Pittsneld  contained  the  principles  which  he 
wished  to  have  adopted,  and  as  he  did  not  wish  to  consume  the  time 
of  the  Convention,  he  would  withdraw  his  resolution. 

The  Chairman  said  it  could  not  be  withdrawn.  It  was  then 
voted  to  pass  it  over,  and  on  motion  of  Mr.  Childs,  the  resolution 
offered  by  him  yesterday,  was  taken  into  consideration. 

Mr.  Childs  said  that  the  reason  why  he  was  the  mover  of  this 
resolution  was  that  the  reverend  gentleman  from  Boston,  who  was 
a  member  of  the  committee,  and  had  proposed  making  a  motion  of 


358  MASSACHUSETTS    CONVENTION. 

similar  import,  was  not  in  his  seat  at  the  time  when  the  subject 
came  up  in  Convention.  He  hoped  the  object  he  had  in  view 
would  not  be  prejudiced  by  the  proposition  coming  from  him,  instead 
of  coming  from  a  more  respectable  and  proper  source  as  had  been 
intended.  Mr.  C.  stated  as  a  general  principle,  that  the  right  of 
every  individual  to  worship  God  in  a  manner  agreeable  to  the  dic- 
tates of  his  own  conscience,  was  one  which  no  government  could 
interfere  with.  Whenever  government  had  undertaken  to  exercise 
an  authority  in  this  respect,  it  was  an  usurpation,  and  when  this  usur- 
pation had  been  submitted  to,  the  worship  rendered  was  not  sincere. 
In  our  own  government,  unless  it  could  be  demonstrated  that  it  was 
necessary  to  the  support  of  government,  and  clearly  for  the  interest 
of  the  community,  it  could  not  be  fairly  exercised.  He  would  call 
the  attention  of  the  committee  to  the  argument  of  the  gentleman 
from  Boston.  He  would  not  admit  that  he  or  any  other  gentleman 
who  would  support  the  report  of  the  select  committee  felt  a  greater 
interest  in  the  support  of  religious  institutions  than  gentlemen  who 
would  advocate  the  resolution  which  he  had  proposed.  The  gen- 
tleman had  said  that  the  committee  were  unanimously  of  opinion 
that  the  support  of  institutions  for  religious  instruction  and  worship 
were  essential  to  the  happiness  of  the  people  and  the  good  order  of 
society,  and  therefore  ought  to  be  supported  by  legislative  provision. 
He,  Mr.  C,  would  draw  a  different  conclusion  from  the  same  prem- 
ises. He  argued  that  because  religious  instruction  and  worship 
were  essential  to  the  happiness  of  the  people  and  good  order  and 
preservation  of  government,  they  ought  to  be  left  to  the  free  support 
of  every  individual,  according  to  the  dictates  of  conscience.  He 
contended  that  this  was  the  only  mode  in  which  religious  worship 
could  be  properly  supported,  and  the  mode  in  which  in  practice 
under  the  constitution  it  had  been  actually  supported.  The  princi- 
ples of  the  third  article  in  the  declaration  of  rights  had  been  aban- 
doned in  practice,  and  the  resolution  before  the  committee  did  not 
deviate  from  what  had  been  the  practice  for  many  years  in  the 
Commonwealth — what  had  been  recognized  by  the  Legislature — 
and  from  the  general  sentiment  of  the  people.  He  believed  there 
was  no  state  where  there  was  so  much  refinement — so  much  instruc- 
tion, and  so  great  a  regard  for  religion  as  were  to  be  found  in  this 
Commonwealth.  He  was  willing  to  go  as  far  as  any  gentleman  in 
this  eulogy  of  the  character  of  the  people  in  all  parts  of  the  State. 
But  he  would  not  admit  that  this  character  was  to  be  attributed  to 
the  inefficient  and  inoperative  recognition  of  a  principle  in  the  con- 
stitution. It  was  to  be  attributed  to  the  general  support  of  common 
schools — they  were  the  primum  mobile  of  improvement  in  the 
Commonwealth.  He  appealed  to  the  example  of  the  town  of  Bos- 
ton where  this  principle  of  the  constitution  had  no  effect,  and  yet 
there  was  nowhere  to  be  found  a  higher  degree  of  improvement. 
The  example  of  Rhode  Island  had  been  appealed  to  as  a  case  to 
show  the  necessity  of  some  constitutional  provision  for  the  support 
of  religion.     But  Mr.   C.  said  that  the  low  state  of  morals  and  im- 


MASSACHUSETTS    CONVENTION.  359 

provement  in  that  state  could  not  be  attributed  to   the   want  of  a 
compulsatory  provision  for  the  support  of  religion,  but  to  their  want 
of  common  schools.     In  Providence,  where  schools  were  encouraged, 
as  much  attention  was  paid  to  the  support  of  religion  as  in  Boston. 
This  amounted  to  a  demonstration  that  the  effect  was  to  be  attributed 
to  the  general  diffusion  of  education  by  common  schools,  and  not 
to  any  provision  for  the  support  of  religion.     The  example  of  New 
York,  he  said,  had  been  appealed  to,  but  there  was  there  the  same 
want  of  schools  as  in  Rhode  Island.     It  was  proposed  to  substitute 
the  word  Christian  for  protestant.     He  called  on  gentlemen  to  define 
Christian.     Clergymen  differed    on  the  subject.     What  would  be 
called  Christianity  by  one,  would  be  called  infidelity  by  another. 
Who  knows  what  will  be  the  state  of  things  some  years  hence. 
The  time  was  rapidly  approaching  when  men  professing  to  be  Chris- 
tians will  be  so  opposed  that  if  this  part  of  the  constitution  is  retain- 
ed, the  Commonwealth  will  be  in  a  state  of  greater  dissension  from 
theological  differences  than  they  have  ever  been    from    political 
controversies.     The  resolution  proposed  by  the   select   committee, 
declares  the   principle  thus — the   Legislature  shall  have  power  to 
compel  the  people  to  support  religious  teachers  ;  but  if  gentlemen 
would  examine  it  in  its  details,  they  would  find  that  it  would  accord 
in  practice  with  the  principle  in  the  resolution  proposed  by  him  as 
a  substitute.     In  this  construction  his  opinion  was  supported  by 
the  argument  of  the  gentleman  from  Concord  yesterday.      That 
gentleman  was  consistent  in  his  views,  and  for  adopting  a  consistent 
course.     Mr.  C.  said  he  would  rather  adopt  the  consistent  principle 
of  that  gentleman,  than  the   contradictory  one   of  the  committee. 
The  proposition  supported  by  him  was  explicit,   and  it  would  be 
known  what  was  to  be  depended  on.     The  principle  maintained  by 
the  committee  with  the  qualifications  with  which  we  had  accom- 
panied it,  would  keep  the  State  in  constant  quarrels  and  collisions. 
He  repeated  that  rather  than  take  the  report  of  the  committee,  he 
would  take  the  proposition  advocated  by  the  gentleman  from  Concord. 
Our  forefathers  had  been  repeatedly  brought  forward  as  affording  an 
illustrious  example.     He  presumed,  however,  that  their  example  was 
not  to  be  adopted  in  everything,  and  contended  that  this  was  a 
domination  of  the  same  kind,  and  only  differing  in  degree  from  that 
which  every  body  at  the  present  day  disapproved.     He  would  state 
how  far,  in  his  opinion,  government  has  a  right  to  interfere  in  mat- 
ters of  religion.     So  far  as  the  laws  can  take  cognizance  of  offences 
committed  against  good  morals,  government  has  a  right  to  interfere  ; 
but  the  principle  which    leads  us  to  worship  God,  is  beyond  the 
control  of  government.     The  gentleman  from  Concord  had  said, 
that  if  we  abandon  the  means  of  supporting  religious  instruction,  we 
should  be  obliged  to  resort  to  a  standing  army  to  enforce  obedience 
to  the  laws.     He,  Mr.  C,  would  reverse  the  proposition.      Establish 
the  principle  that  government  has  a  right  to  compel  the  support  of 
public  worship,  and  a  standing  army  will  be  necessary  to  carry  it 
into  effect.     The  gentleman  was  mistaken.     The  proper  support  of 


360  MASSACHUSETTS    CONVENTION. 

religion  was  the  voluntary  contribution  of  individuals.  Mr.  C.  also 
said  that  the  third  article  was  inconsistent  with  the  second  article 
of  the  bill  of  rights. 

Mr.  Tuckerman  said  that  he  had  not  intended  to  have  spoken  to 
this  subject.  He  thought  however  that  there  was  a  fallacy  in  the 
argument  of  the  gentleman  from  Pittsfield,  which  it  would  not  be 
difficult  to  expose,  and  which  ought  to  be  corrected.  He  agreed 
with  that  gentleman,  that  religion  had  too  often  been  abused,  to 
accomplish  the  purposes  of  civil  government ;  but  said  that  it  was 
very  unjust,  on  the  ground  of  this  abuse,  to  reason  against  the 
use,  which  legislators  might  make  of  religion.  Government,  if  it 
be  free,  must  be  founded  in  religion ;  or  in  other  words,  in  the  vir- 
tues that  are  derived  from  religion.  That  if  there  was  a  vantage 
ground  of  which,  of  all  others,  as  a  politician  he  would  avail  him- 
self on  this  subject,  it  would  be  this,  that  for  our  very  knowledge 
of  the  principles  of  pure  republicanism,  we  are  indebted  peculiarly 
to  Christianity.  It  was  not  necessary  to  run  a  parallel  between  our 
own  and  other  governments,  in  order  to  show  the  distinct  and  indi- 
vidual character  of  our  own  civil  institutions.  Let  gentlemen  con- 
sider but  for  a  moment,  how  analogous  are  the  principles  which  dis- 
tinguish our  civil  institutions,  to  the  spirit  and  principles  of  the 
Christian  religion.  Other  religions  had  taught  the  rights  of  the 
rich  and  powerful,  and  the  duties  of  those  who  were  without 
power,  and  were  poor.  But  it  was  Christianity  that  first  taught  ex- 
plicitly, and  fully,  and  with  authority,  the  rights  of  the  poor,  the 
dependent,  and  the  governed,  and  the  duties  of  the  rich,  of  rulers, 
and  of  all  who  had  influence  in  society.  Our  religion  is  a  perfect 
system  of  reciprocal  rights  and  duties,  extending  to  every  relation 
and  circumstance  of  life.  He  asked,  why  was  Christianity  perse- 
cuted, when  it  was  first  given  to  the  world  ?  It  was  for  the  very 
reason,  that  it  was  opposed,  in  its  great  and  characteristic  peculiari- 
ties, not  only  to  the  general  sentiments  and  usages  of  the  age,  but 
to  all  that  characterized  the  governments  of  that  time.  If  our  reli- 
gion, in  its  purity,  had  pervaded  the  mass  of  the  people  to  whom  it 
was  first  offered ;  if  it  had  been  generally  received  where  the  Roman 
government  had  extended  its  authority,  it  would  have  produced  a 
state  of  society  to  which  we  have  no  parallel  in  any  age  or  nation 
of  the  world.  A  society  possessed  of  all  the  essential  principles  of 
civil  liberty,  most  worthy  of  all  the  proper  freedom  of  man,  and 
capable  at  will  of  asserting  its  rights,  and  yet  submitting  without 
resistance  to  a  most  oppressive  tyranny.  Had  it  been  received  by 
the  governments  of  that  age  it  would  have  brought  them  at  least  to 
a  very  striking  resemblance  of  our  own.  This  consequence  would 
have  been  necessary.  The  Romans  incorporated  with  their  own, 
the  gods  of  conquered  nations.  It  was  a  part  of  their  policy.  But 
they  knew  too  well  the  policy  of  a  despotism  to  receive  under  its 
patronage  a  religion  which  taught  the  rights  of  every  individual  as 
explicitly  as  his  duties.  These  were  among  the  reasons  why  Chris- 
tianity at  its  first  introduction  to  our  world  was  rejected  and  perse- 


MASSACHUSETTS     CONVENTION.  361 

cuted.  But  pass  on  to  the  age  of  Constantine.  It  is  said  that  here  we 
are  to  look  for  the  reciprocal  influence  of  Christianity  on  govern- 
ment, and  of  government  on  Christianity.  But  is  this  true  ?  What 
was  Christianity  in  the  age  of  Constantine  ?  Every  one  knows  that 
the  Christianity  embraced  by  Constantine,  was  a  most  perverted  and 
corrupted  form  of  our  religion.  He  made  it  the  religion  of  the 
state,  because,  as  he  received  it,  he  could  make  it  subservient  to  the 
purposes  of  a  despotism.  Christianity,  as  it  was  then  received, 
and  Christianity  as  it  was  in  the  days  of  its  author,  were  distinct 
religions.  No  fair  argument  therefore  can  be  deduced  from  the  use 
that  was  thus  made  of  Christianity,  falsely  so  called,  against  avail- 
ing ourselves  of  its  power  in  circumstances,  in  which,  if  it  act  at 
all,  it  can  act  only  in  favor  of  the  people.  The  gentleman  says, 
this  article  is  inoperative,  and  he  says  too,  that  in  its  principles  it  is 
a  usurpation  of  inalienable  rights.  He  must  reconcile  these  views 
of  it.  But  he  asks,  why  have  not  the  Legislature  availed  itself  of 
the  compulsory  power  which  is  given  in  the  third  article  ?  The 
reason  is,  that  the  indirect  influence  of  this  article  has  secured 
them  from  the  necessity  of  using  this  power.  But  annul  this  arti- 
cle, and  it  will  not  require  the  eye  of  a  prophet  to  discern  the  time, 
when  our  State  will  obtain  a  new  character ;  when  some  of  its 
most  important  institutions  will  be  unsettled ;  and  when  we  shall 
not  be  able  to  remedy  the  evil  we  have  occasioned.  The  gentle- 
man says  that  our  schools  are  nurseries  of  morality.  They  are. 
But  would  our  institutions  for  the  instruction  of  youth  be  what 
they  are,  if  they  were  independent  of  our  institutions  for  religious 
instruction  ?  We  are  referred  to  Rhode  Island  and  New  York, 
where  no  provision  for  the  support  of  religion  is  made,  like  the 
third  article  of  our  bill  of  rights.  And  we  may  ask  if,  in  those 
states,  there  are  institutions  like  ours  for  the  universal  diffusion  of 
knowledge  among  children  ?  The  author  of  the  Age  of  Reason  was 
asked  why  schools  were  established  in  one  state  in  every  town  and 
settlement,  and  the  education  of  youth  in  other  states  was  so  much 
neglected  ?  He  answered,  that  where  you  find  the  institutions  of 
religion  maintained,  there  also  you  will  find  schools :  and  where 
there  are  no  churches,  there  also  the  instruction  of  the  young  is 
neglected.  And  is  it  not  so?  The  gentleman  says,  if  religion  is 
to  be  established,  let  it  be  defined.  He  challenges  any  gentleman 
to  say,  amidst  all  the  confusion  of  sects,  what  is  Christianity  ?  We 
reply,  it  is  a  great  and  characteristic  excellence  of  this  article,  that 
it  does  not  define  religion.  It  does  not  take  cognizance  of  opinion, 
nor  leave  opinion  to  the  cognizance  of  a  legislature.  It  gives  no 
exclusive  claims  to  any  denomination  of  Christians.  It  provides 
only  that  Christian  instruction  shall  be  maintained.  The  prevailing 
evil  of  other  establishments  has  been,  that  they  have  defined  reli- 
gion and  enforced  the  sentiments  of  a  sect  or  party.  The  framers 
of  our  constitution  have  avoided  this  evil.  And  in  answer  to  the 
question  what  is  Christianity,  Mr.  T.  said,  that  it  consists  essentially 
in  the  great  and  essential  principles  in  which  its  believers  agree  : 
46 


362  MASSACHUSETTS    CONVENTION. 

in  a  conviction  of  the  divine  authority  of  its  author,  and  of  the  ob- 
ligation of  the  duties  of  his  religion.  Fenelon  was  a  true  Chris- 
tian ;  and  so  was  Wm.  Penn ;  and  so  was  Watts ;  and  at  least 
equally  so  was  Lardner.  This  definition  of  Christianity  may  not 
be  satisfactory  to  all.  It  comprises  however  the  Christianity  recog- 
nized in  this  article ;  and  for  which  the  advocates  of  the  article 
contend.  Religion,  comprehending  the  personal  and  social  virtues 
of  the  gospel,  and  as  recognized  by  the  constitution,  is  an  angular 
stone  in  the  fabric  of  our  government.  Remove  it,  and  you  will 
make  every  part  of  the  edifice  insecure.  He  said  that  the  article 
had  received  a  construction  which  had  occasioned  some  evil.  He 
should  be  glad  to  adopt  any  modification  of  it,  by  which  this  evil 
might  be  prevented.  He  thought  that  a  Trinitarian  ought  not  to 
be  obliged  to  pay  his  tax  for  the  support  of  Unitarian  worship ; 
nor  that  a  Unitarian  should  be  compelled  to  support  Trinitarian 
worship.  But  he  thought  that,  as  no  state  ever  did  or  can  flour- 
ish without  religion,  any  more  than  without  a  judiciary,  it  was 
quite  as  reasonable  that  every  individual  should  be  obliged  to 
support  religion  in  some  form,  as  that  he  should  contribute  to  the 
support  of  the  established  courts  of  law. 

Mr.  Abbott  of  Westford  opposed  the  resolution  of  the  gentleman 
from  Pittsfield.  He  said,  in  answer  to  the  gentleman  from  Lynn, 
(Mr.  Mudge)  that  it  should  be  shown  that  the  cases  of  particular 
inconvenience  outweighed  the  general  good  arising  from  the  third 
article,  before  it  should  be  annulled.  He  should  have  thought  it  a 
self-evident  proposition,  if  a  contrary  opinion  had  not  been  inti- 
mated in  the  course  of  the  debate,  that  religion  and  morality  were 
essential  to  the  good  order  and  happiness  of  a  people  ;  he  would, 
however,  refer  gentlemen  to  the  history  of  other  countries  where 
they  were  not  supported,  for  the  truth  of  the  assertion.  He  ap- 
prehended that  if  we  should  not  uphold  them,  we  should  soon 
witness  a  disregard  for  the  Sabbath,  and  that  the  people  would 
cease  to  exhibit  the  same  orderly  conduct  which  now  prevails.  He 
argued  that  in  giving  the  Legislature  power  to  interfere  in  the  sup- 
port of  religion  we  were  not  divesting  ourselves  of  inalienable 
rights.  The  bill  of  rights  declares,  that  the  rights  of  defending  our 
lives  and  liberties  and  of  possessing  and  protecting  property,  are 
inalienable  ;  and  yet  no  man  ever  thought  that  the  laws  regula- 
ting the  modes  of  defending  our  lives  and  of  acquiring  and  re- 
taining property  were  repugnant  to  this  declaration.  The  right  of 
taxing  for  the  support  of  public  worship  did  not  interfere  with  any 
of  these  inalienable  rights,  and  the  people  had  as  good  a  right  to 
invest  the  Legislature  with  this  power  in  respect  to  public  worship 
as  in  respect  to  public  schools.  There  were  some  rights,  such  as 
that  of  private  opinion,  when  it  does  not  result  in  acts  hostile  to  the 
well  being  of  the  community,  where  the  Legislature  ought  not  to 
interfere,  and  this  third  article  invested  it  with  no  power  in  such  cases. 
The  question  then  was,  is  it  expedient  to  give  the  Legislature  the  au- 
thority contained   in   this  article.     It  had  been  said  there  was  no 


MASSACHUSETTS    CONVENTION.  363 

provision  of  this  kind  in  the  constitution  of  any  other  state  in  the 
union.  Comparisons  were  invidious,  but  he  did  not  think  that 
Massachusetts  was  behind  her  sister  states  in  good  order  and  virtue, 
and  it  was  not  certain  that  the  good  habits  of  other  states  will 
continue  so  long  as  if  they  had  such  a  provision  as  we  have.  If 
we  strike  it  out  of  our  constitution  we  may  have  reason  in  future 
to  regret  it.  The  gentleman  from  Pittsfield  says  there  is  an  in- 
consistency between  the  second  and  the  third  article  of  the  bill  of 
rights.  It  was  surprising  that  we  at  this  late  day  should  be  the 
first  to  make  the  discovery.  The  second  article  says  that  no  man 
shall  be  amenable  for  his  private  sentiments  in  religion  or  for  wor- 
shipping God  according  to  the  dictates  of  his  conscience  in  a  peace- 
able manner,  and  the  third  says  that  every  man  shall  contribute  to 
the  support  of  public  worship  in  order  that  the  State  may  derive 
benefit  from  it.  He  professed  himself  unable  to  see  the  contra- 
diction. If  the  Legislature  had  not  the  power  of  compelling  a 
man  to  contribute,  the  provision  would  be  nugatory.  He  con- 
cluded by  hoping  that  the  provision  in  the  third  article  would 
remain. 

Mr.  Nelson  of  Maiden  said  that  it  was  generally  agreed  that  re- 
ligion was  a  valuable  thing,  and  that  it  was  useful  to  support  pub- 
lic worship  ;  but  the  question  was,  what  mode  was  most  expedient 
for  that  purpose.  He  thought  that  for  the  Legislature  to  put  any 
restraint  on  religion  was  going  beyond  their  liberties.  That  reli- 
gion was  not  a  matter  for  legislation.  The  Lord  Jesus  Christ  de- 
clared that  his  kingdom  was  not  of  this  world.  This  kingdom  had 
been  in  the  world  ever  since  his  time  and  did  not  need  the  aid  of 
civil  authority.  Jesus  Christ  was  the  king  of  this  kingdom,  and  he 
asked  whether  the  Legislature  of  this  Commonwealth  had  a  right 
to  make  laws  for  this  kingdom.  It  had  been  objected  that  the 
Christian  religion  would  go  down,  if  not  supported  by  the  civil  arm. 
It  had  stood  on  its  own  broad  basis  for  two  thousand  years,  and  it 
had  been  as  prosperous  the  last  twenty  years  as  ever  it  had  been. 
It  was  the  safest  and  most  honorable  way  to  leave  it  to  voluntary 
support.  He  referred  to  great  exertions  which  had  been  made  and 
are  now  making  for  its  support  and  extension  by  the  British  For- 
eign Bible  Society  and  other  institutions  of  the  kind,  which  would 
despise  calling  in  aid  from  the  civil  arm.  He  said  the  argument 
from  the  effect  to  the  cause  was  not  just  in  this  case,  as  applied  by 
gentlemen  in  favor  of  the  provision,  for  the  operation  had  not  been 
beneficial  as  they  had  asserted.  He  should  hold  up  his  hand  with 
peculiar  energy  to  alter  this  article,  not  expunge  it,  for  then  he 
feared  the  Legislature  would  go  to  making  laws  about  religion.  He 
would  insert  a  provision  to  restrain  them  from  making  any  laws  on 
the  subject,  and  one  other  provision  to  prevent  any  subordination  of 
one  denomination  to  another. 

Mr.  Stowell  of  Peru  thought  the  advocates  for  the  abolition  of 
the  third  article,  mistook  their  interest.  For  the  last  twenty  years, 
the  Legislature  had  been  constantly  petitioned   to  incorporate  reli- 


364  MASSACHUSETTS     CONVENTION. 

gious  societies :  and  why  ?  because  societies  could  not  enjoy  their 
rights  without  being  incorporated.  These  petitions  are  granted  of 
course.  They  have  their  rights  secured — religion  flourishes.  Take 
away  the  right  of  the  Legislature  to  support  religion,  and  they  are 
left  without  any  provisions  for  their  security.  He  was  opposed  as 
well  to  the  report  of  the  select  committee,  as  to  the  resolution  of 
the  gentleman  from  Pittsfield. 

Mr.  Blake  of  Boston  said  he  had  already  been  indulged  with  an 
opportunity  of  expressing  the  views  of  the  select  committee,  and  it 
might  be  expected  that  he  should  also  express  his  own  views  on 
this  subject.  When  the  Convention  first  assembled,  the  sentiment 
of  respect  and  veneration  for  the  constitution  was  reiterated  from 
all  parts  of  the  house  ;  this  sentiment  had  been  sadly  departed 
from.  The  constitution  had  become  too  familiar  by  too  much 
handling,  and  gentlemen  now  talked  very  freely  of  its  rotten  parts 
and  of  its  relics  of  bigotry.  He  objected  to  making  many  altera- 
tions, where  five  hundred  minds  were  to  be  consulted.  Fifteen 
men  out  of  the  Convention  might  meet  together  perhaps  and  agree 
upon  some  things  which  might  be  useful.  He  held  the  third  arti- 
cle to  be  the  most  material  part  of  the  constitution  ;  it  was  the  key 
stone  of  the  arch.  He  would  endeavor  to  answer  some  of  the  ob- 
jections advanced  against  it.  One  objection  was  that  religion  will 
take  care  of  itself.  It  will  do  so :  but  by  secondary  causes.  Is  it 
a  blessing  ?  One  of  the  choicest  blessings  we  enjoy  ?  Like  other 
benefits  conferred  by  Providence  on  man,  it  would  require  an  effort 
on  his  part.  It  is  true  that  originally  Christianity  did  support  itself. 
Its  author  was  living  and  had  the  power  of  working  miracles  to  es- 
tablish it.  God  has  made  provision  for  the  inferior  parts  of  the 
creation,  but  from  man  he  requires  exertion.  He  has  given  man 
mind  ;  but  without  study  and  cultivation  it  is  a  mere  carta  erasa. 
It  is  said  that  religion  is  an  affair  between  man  and  his  maker,  and 
legislative  interference  is  improper.  The  argument  would  prevent 
our  enacting  laws  against  blasphemy,  breach  of  the  Sabbath,  mur- 
der, theft,  and  other  things  forbidden  in  the  ten  commandments.  It 
has  been  objected  that  individual  evil  has  been  produced  by  the 
operation  of  this  article.  This  is  incident  to  all  general  laws',  but 
it  is  no  answer  to  the  general  good  which  results  from  them.  It 
has  been  said  that  this  is  the  only  State  which  has  a  provision  in 
its  constitution  of  this  kind.  This  was  true,  but  not  an  objection 
to  it.  He  had  travelled  a  great  distance  along  some  parts  of  our 
Atlantic  coast,  and  except  in  our  cities  had  frequently  found  nothing 
to  remind  him  that  he  was  in  a  Christian  country.  Massachusetts 
in  this  respect  stood  on  an  eminence.  Another  argument  was  al- 
leged that  it  was  unjust  to  tax  one  person  for  another's  benefit. 
The  same  objection  would  apply  to  taxes  for  the  support  of  schools, 
courts  of  justice,  in  short,  of  all  public  institutions.  The  gentle- 
man from  Lynn  considered  this  article  as  interfering  with  the^rights 
of  conscience.  The  question  was  not  a  question  of  conscience,  but 
of  pounds,  shillings  and  pence.     There  was  no  injunction  in  this 


MASSACHUSETTS    CONVENTION.  365 

article  to  attend  at  any  particular  place  of  public  worship ;  every 
man  might  attend  where  he  pleased. 

Mr.  Baldwin  of  Boston  rose  for  the  purpose  of  supporting  the 
resolution  offered  by  the  gentleman  from  Pittsfield.  He  objected  to 
the  statement  made  in  a  syllogistic  form  in  the  third  article  of  the 
declaration  of  rights.  He  agreed  in  the  premises,  but  denied  the 
conclusion.  It  was  stated,  that  as  the  happiness  of  a  people  and 
the  preservation  of  government  depend  on  piety,  religion,  and  mor- 
ality, and  as  these  cannot  be  diffused  without  the  institution  of 
public  worship,  therefore  the  people  have  a  right  to  invest  their 
Legislature  with  power  to  compel  the  support  of  public  worship. 
This  conclusion,  he  insisted,  did  not  follow,  but  the  object  could 
be  obtained  in  a  more  skilful  and  proper  manner  than  by  legislative 
interference.  He  appealed  to  the  Mosaic  dispensation  to  prove  that 
no  penalties  were  inflicted  by  the  civil  magistrate,  to  enforce  the 
performance  of  religious  duties.  He  quoted  a  number  of  passages 
from  Scripture,  which  he  maintained,  supported  his  position.  He 
quoted  also  from  the  New  Testament,  to  show  that  religion  was 
not  to  be  propagated  and  supported  by  the  aid  of  the  civil  magis- 
trate. In  our  Lord's  instructions  to  his  disciples,  he  said,  If  they 
do  not  receive  you — what  then  ?  Deliver  them  over  to  the  civil 
magistrate  ?  No,  but  shake  off  the  dust  of  your  feet  against  them. 
The  kingdom  of  our  Saviour  was  not  of  this  world.  Religion  was 
not  supported  in  the  apostolic  age,  by  force  of  any  kind.  It  might 
be  answered,  that  it  was  supported  by  miracle.  He  did  not  under- 
stand it  so — all  the  powers  of  the  pagans  were  opposed  to  Christian- 
ity. St.  Paul  preached  the  gospel  "from  Jerusalem  round  about 
unto  Illyricum,"  a  distance  of  a  thousand  miles,  and  travelled  prob- 
ably in  a  zigzag  line.  It  did  not  appear  that  his  preaching  was  sup- 
ported in  all  cases  by  miracles,  but  by  the  power  of  truth.  He  did 
not  agree  with  the  gentleman  from  Chelsea,  that  the  cause  of  Chris- 
tianity was  promoted  by  its  connection  with  the  government,  under 
the  emperor  Constantine. 

Mr.  Tuckerman  rose  to  explain.  He  did  not  say  that  Christian- 
ity was  promoted  by  the  countenance  it  received  from  Constantine, 
but  that  he  received  it,  when  it  was  in  a  form  so  corrupt  that  he 
could  convert  it  to  his  own  purposes.  In  the  pure  state  in  which 
we  enjoy  it,  it  does  not  admit  of  being  perverted  to  any  such  pur- 
poses. 

Mr.  Baldwin  proceeded.  He  said  that  Constantine  had  done 
Christianity  greater  injury  than  good  by  adopting  it  as  the  religion 
of  the  state.  It  did  not  need  the  aid  of  government  to  assist  its 
propagation.  Its  connection  with  the  government  tended  to  corrupt 
it ;  and  he  attributed  the  low  state  of  Christianity,  during  the  dark 
ages,  to  its  amalgamation  with  the  civil  power.  He  described  the 
atrocities  committed  in  Fiance,  under  the  sanction  of  Christianity 
— the  massacre  of  60,000  protestants  in  1562 — the  two  civil  wars 
that  followed ;  the  massacre  at  Paris,  when  70,000  persons  were 
slaughtered,  and  human  blood  flowed  down  the  channels  of  the 
streets ;  and  attributed  these  cruelties  to  the  unnatural  combination 


366  MASSACHUSETTS    CONVENTION. 

of  religion  with  the  civil  power.     He  referred  to  the  persecutions  in 
England — the  burning   at   Smithfield — the  imprisonment  of  John 
Bunyan — the   ejection   of  two    hundred  dissenting  ministers — the 
persecution    of   Thomas    Delong,    and    other   examples,    to    show 
the    abuses    of   religion    when   connected    with    the    civil   power. 
He  honored  the  memory  of  our  ancestors.     But,  said  he,  shall  we 
perch  ourselves  upon  their  tombstones  and  sing  a  requiem  to  their 
ashes,  or  shall  we  endeavor  to  derive  profit  from  their  experience 
and  example,  and  continue  the  course  of  improvement  which  they 
began.     We   should   imitate  their  virtues  and   take  warning  from 
their  vices.     If  those  exalted  spirits  could  look  down  from  heaven, 
they  would,  if  it  were  possible,  shed  tears  of  regret  for  the  errors 
they  committed  in  persecuting  those  who  differed  from  them  in 
matters  of  religion.     He  said  that  no  denomination  had  been  more 
devoted  supporters  of  the  government  of  this  Commonwealth,  nor 
more  persevering  friends  of  liberty,  than  that  to  which  he  belonged. 
He  adverted  to  the  history  of  the  present  constitution.     He  had  no 
doubt  of  the  pious  intentions  of  the  framers  of  it,  in  inserting  the 
third  article.     It  was  a  subject  of  great  difficulty — there  were  long 
contentions — and  it  was  hoped  that  it  would  answer  the  purpose  of 
reconciling  all  parties.     But  it  had  been  found  that  some  improve- 
ment could  be  made  in  it.     The  intentions  of  the  framers  had  not 
always  been  carried  into  effect — treasurers  have  sometimes  refused 
to  give  up  money  to  which  other  denominations  were  entitled.    He 
had  known  in  one  town  in  the  county  of  Middlesex,  fourteen  law- 
suits to  compel  them  to  pay  over  the  money.     The  necessity  of 
such  proceedings  occasioned  much  expense,  and,  what  was  worse, 
created  ill-blood.     He  contended  that  the  proposition  now  under 
consideration,  would  give  sufficient  security  to  all  denominations. 
There  was  one  argument  which  had  not  been  touched  upon.     The 
dissenting  denominations  had  never  resorted  to  the  aid  of  the  law 
for  the  support  of  religion.     They  depended  solely  upon  the  power 
of  truth.     Yet  they  had  always  been  increasing,  in  opposition  to 
the  Congregational  denomination.     The  argument  therefore,  that  if 
the  laws  for  the  support  of  public  worship  are  repealed,  the  mem- 
bers of  the  Congregational  societies  will  all  fall  off,  was  not  sound. 
But  it  is  these  laws  that  drive  them  off.     Oppress  any  people  and 
you  may  be  sure  that  they  will  effectually  resist  it,  and  will  find 
their  level  in  society.     He  did  not  wish  there  should  be  any  oppres- 
sion, any  subordination  of  one  denomination  to  another.    He  would, 
for  his  part,  never  consent  to  receive  anything  towards  his  support, 
that  was  extorted  by  the  aid  of  laws.     He  coveted  no  man's  gold 
or  silver.     Such  support  was  not  necessary.     He  referred  to  the 
clergy  of  Boston;  they  were  liberally  supported,  and  entirely  by 
voluntary  contribution.     He  recommended  the  trial  of  the  same 
system  in  the  country,  and  he  hoped  that  the  resolution  would  be 
adopted. 

Mr.  Freeman  of  Boston  rose  because  it  was  desirable  to  have 
persons  of  all  denominations  express  their  opinions.  He  belonged 
to  a  minority,  as  well  as  his  colleague,  (Mr.   Baldwin;)    but  he 


MASSACHUSETTS    CONVENTION.  367 

could  say  for  himself  and  his  friends  of  his  religious  sentiments, 
that  they  had  never  found  any  inconvenience  from  the  operation  of 
the  third  article.  From  the  year  1730,  they  had  always  enjoyed 
and  expressed  their  sentiments  freely.  He  had  heard  of  some 
abuses  under  this  article,  but  he  thought  they  were  such  as  might 
be  remedied  by  legislation.  If  the  mode  of  drawing  taxes  from  the 
treasurers  was  inconvenient,  it  might  be  changed.  One  argument 
which  had  been  urged  against  the  article  was,  that  religion  is  a 
work  of  God,  and  that  it  is  presumption  in  man  to  intermeddle. 
The  gentleman  from  Boston  (Mr.  Blake,)  had  given  a  sufficient 
answer  to  this,  in  saying  that  God  operates  by  second  causes.  The 
Christian  religion  was  introduced  by  miracles,  and  then  it  was  left, 
like  other  things,  to  extend  itself  by  ordinary  means.  Does  not 
God  give  us  everything  ?  Our  daily  bread  ?  But  if  we  do  not 
work  we  have  no  bread  to  eat.  How  is  the  word  of  God  spread  ? 
Is  the  Bible  dropped  from  heaven  ?  ready  translated  for  the  differ- 
ent nations  who  are  to  u§e  it  ?  No,  Bible  societies  and  other  insti- 
tutions are  formed  in  various  parts  of  the  Christian  world.  Is  hu- 
man interference  proper  here,  and  does  it  become  vicious  as  soon  as 
it  assumes  a  legislative  form  ?  Another  objection  is,  that  religious 
establishments  have  been  productive  of  mischief.  He  agreed  that 
making  this  provision  was  establishing  religion,  and  that  religious 
establishments  had  been  mischievous,  but  it  was  because  something 
else  was  mixed  with  religion.  This  article  does  not  establish  Cal- 
vinism, or  Arminiauism,  or  any  particular  creed.  It  establishes 
nothing  but  Christianity.  The  word  protestant  was  used,  no  doubt, 
with  the  best  intention,  because  at  the  time  the  constitution  was 
framed,  there  were  none  but  protestants  among  us.  Since  that 
time,  a  respectable  body  of  Christians  has  grown  up,  and  it  is 
proper  to  change  that  word.  That  religion  is  established  by  this 
article,  which  makes  the  Scriptures  the  rule  of  our  faith,  with  the 
right  of  interpreting  them  according  to  our  own  understanding. 
In  other  countries,  this  has  not  been  the  established  religion.  Con- 
stantine  established  the  religion  of  the  council  of  Nice.  Constantius, 
that  of  Arius.  The  catholic  is  that  of  the  council  of  Trent.  The 
religion  of  England  is  that  of  the  thirty-nine  articles — of  Scotland, 
that  of  the  profession  of  faith.  An  attempt  was  made  here  to  estab- 
lish that  of  the  Assembly's  Shorter  Catechism.  Some  would  prefer 
to  have  Swedenborgianism,  or  Hopkinsianism,  or  some  other  relig- 
ion established  here.  But,  thank  God,  our  government  is  wiser 
than  they.  It  leaves  us  a  common  religion  in  which  we  all  agree, 
and  we  are  at  liberty  to  mingle  in  it  truth,  folly,  or  error  of  our 
own,  as  our  conscience  and  understanding  shall  dictate.  It  is  said 
that  other  states  have  no  such  proviso.  He  was  tired  of  appeals  to 
other  states.  He  knew  not  what  right  they  had  to  dictate  to  us ; 
we  ought  rather  to  give  an  example  to  them,  with  one  exception, 
Virginia.  In  Virginia  there  were  wise  men.  Wherever  they  appear, 
they  appear  as  one  body,  and  act  with  a  ponderous  mass.  He 
would  not  yield,  however,  to  that  state  in  regard  to  religion.  If 
several  states  are  trying  to  prove  that  government  does  not  need 


368  MASSACHUSETTS    CONVENTION. 

the  aid  of  religion,  nor  religion  the  aid  of  government,  let  them  ; 
and  let  us  take  the  other  course.  If,  at  the  end  of  forty  years  more, 
it  shall  be  found  that  they  make  wiser  ministers  and  better  men, 
and  establish  more  good  order  in  society,  it  will  then  be  time  for 
us  to  change. 

The  committee  rose,  reported  progress,  and  had  leave  to  sit 
again. 

It  was  ordered,  that  when  the  House  adjourns,  it  shall  adjourn  to 
half-past  3,  P.  M. 

Leave  of  absence  was  given  to  Messrs.  Fox  of  Berkley,  Knee- 
land  of  Andover,  Pelham  of  Chelmsford,  Smith  of  Sunderland,  and 
Cummings  of  Orleans. 

The  House  then  adjourned. 

Afternoon  Session. 

The  House  met  according  to  adjournment. 

Upon  calling  the  Convention  to  order,  the  president  mentioned 
that  it  would  be  impossible  for  him,  on  account  of  ill  health,  to  re- 
sume the  chair  this  evening,  after  the  committee  of  the  whole 
should  rise :  whereupon  it  was  ordered  that  the  president  be  author- 
ized to  nominate  a  gentleman  to  preside  in  case  of  his  absence — 
and  he  accordingly  nominated  Gen.  Varnum  of  Dracut,  as  president 
pro  tempore. 

The  Convention  then  went  into  committee  of  the  whole  on  the 
unfinished  business  of  this  forenoon :  Mr.  Varnum  in  the  chair. 

Mr.  Dutton  said,  after  some  introductory  remarks,  that  the  effect 
of  the  amendment  now  under  consideration,  was  to  take  from  cor- 
porations the  power  of  raising  money  by  taxes,  for  the  support  of 
religious  instruction.  He  was  opposed  to  the  amendment,  and  in 
favor  of  the  provision  of  the  constitution.  In  considering  the  ques- 
tion, he  was  willing  to  pursue  the  course  indicated  by  gentlemen 
on  the  other  side.  The  right  to  establish  a  religion  by  law,  had 
been  denied.  In  examining  this,  we  were  led  to  the  origin  of  gov- 
ernment. All  the  constitutions  of  this  country  were  declared  to  be 
compacts  ;  and  in  these,  certain  rights  were  reserved,  called  natural 
or  inalienable.  These  were  so  many  limitations  upon  the  power  of 
the  majority — they  were  never  to  be  encroached  upon, — they  were 
never  surrendered.  It  was  for  the  common  benefit  of  all  that  these 
rights  should  be  held  sacred,  of  the  majority  who  formed  and  ad- 
ministered the  government,  as  well  as  of  the  minority.  Within 
these  limits,  what  had  the  government,  when  formed,  a  right  to  do  ? 
Generally,  it  had  a  right  to  do  whatever  would  promote  the  public 
welfare,  the  highest  interest  of  the  community.  The  question  then, 
might  arise,  whether  it  would  not  be  expedient,  or  for  the  public 
good,  to  make  provision  for  a  system  of  moral  instruction,  by  com- 
pelling men  to  contribute  to  the  support  of  teachers  of  piety,  relig- 
ion and  morality  ?  The  State  had,  doubtless,  the  right  to  do  this, 
if  religion  could  be  established  without  invading  any  of  those  rights 
which  were  allowed  by  all  to  be  natural.     As  to  the  expediency,  or 


MASSACHUSETTS    CONVENTION.  369 

even  necessity  of  placing  religion  under  the  patronage  of  govern- 
ment in  some  form,  history  was  full  of  instruction.  Mr.  D.  here 
referred  to  the  practice  of  ancient  nations,  especially  of  the  Greeks 
and  Romans,  for  the  purpose  of  showing  that  they  found  it  neces- 
sary to  call  in  the  religion  of  the  country  as  an  auxiliary  of  its  civil 
polity.  And  concluded  by  saying,  that  no  nation  had  yet  been 
found  without  some  notion  of  a  future  state  of  reward  and  punish- 
ment, and  that  all  lawgivers  have  availed  themselves  of  this  belief 
to  give,  in  some  form  or  other,  sanction  and  authority  to  their  civil 
institutions.  If  such  has  been  the  experience  of  the  world,  the  ex- 
pediency of  giving  the  support  of  law  to  a  system  of  Christian  in- 
struction, is  as  much  greater  as  the  Christian  religion  is  better  than 
any  other.  Its  pure  and  sublime  morality,  its  motives  and  sanctions, 
recommend  it  as  infinitely  better  suited  to  the  purposes  of  civil 
government,  than  any  or  all  other  systems ;  and  it  is  not  only  the 
right  of  the  State  to  provide  for  its  support,  but  its  solemn  duty. 
There  is  no  morality  without  enormous  defects,  but  Christian  mo 
rality,  and  this  is  necessarily  connected  with  the  Christian  religion. 
To  establish  this,  if  it  can  be  done  without  invading  the  sacred 
rights  of  conscience,  is  the  duty  of  the  State.  Has  this  been 
effected  by  the  present  provision  of  the  constitution  ?  By  the  sec- 
ond article  of  the  bill  of  rights,  it  is  declared  that  no  subject  shall  be 
hurt,  molested,  or  restrained  in  his  person,  liberty  or  estate,  for 
worshipping  God  in  the  manner  and  season  most  agreeable  to  the 
dictates  of  his  own  conscience,  or  for  his  religious  professions 
or  sentiments,  provided,  &c.  ;  and  in  the  third  article  it  is  declared, 
that  every  denomination  of  Christians,  demeaning  themselvespeace- 
ably  and  as  good  subjects  of  the  Commonwealth,  shall  be  equally 
under  the  protection  of  the  law  ;  and  no  subordination  of  any  one 
sect  or  denomination  to  another,  shall  ever  be  established  by  law. 
This  he  contended  was  perfect  liberty  of  conscience  :  this  was  pre- 
serving inviolate  the  right  of  private  judgment  in  matters  of  relig- 
ion. With  these  limitations,  then  it  became  the  duty  of  the  State 
to  establish  the  Christian  religion,  because  it  aided  the  highest  and 
best  purposes  of  the  State — its  tendency  was  to  make  better  sub- 
jects and  better  magistrates,  better  husbands,  parents  and  children. 
It  enforced  the  duties  of  imperfect  obligations  which  human  laws 
could  not  reach — it  inculcated  all  the  domestic  and  social  virtues. 
frugality  and  industry,  prudence,  kind  and  charitable  feeling — it 
made  men  just  and  honest  in  their  dealings  as  individuals,  and  by 
diffusing  the  sentiments  of  equity  and  benevolence,  its  tendency 
was  to  make  states  and  communities  just  towards  each  other.  It 
applied  itself  to  the  source  of  all  action,  the  thoughts  and  interests 
of  the  heart.  It  entered  the  secret  chambers  of  the  soul  and  there 
performed  its  work  silently  and  invisibly,  but  most  effectually.  It 
suppressed  the  rising  sin,  it  extinguished  the  embryo  transgression. 
It  subdued  and  controlled  the  bad  passions  of  men,  by  its  powerful 
influence  upon  their  hopes  and  their  fears.  Are  not  these  civil  ben- 
efits ;  are  not  these  effects  good  for  the  State  ? 
47 


370  MASSACHUSETTS    CONVENTION. 

But  it  is  said  that  religion  is  a  concern  between  man  and  his 
maker  ;  and  so  it  is.  Every  man  is  responsible  to  God  for  his  faith, 
and  to  God  only.  The  state  does  not  intermeddle  with  it.  That 
is  merely  a  personal  concern,  and  every  man  must  stand  or  fall  by 
his  own  faith.  But  the  state  does  take  notice  of  the  conduct  of 
men.  It  punishes  offences  against  Christianity,  such  as  blasphemy, 
bigamy,  &c,  not  for  the  purpose  of  upholding  it  as  a  religion,  but 
because  they  are  offences  against  the  state,  against  the  good  man- 
ners and  morals  of  society.  Such  a  religious  establishment  as  the 
constitution  provides,  rests,  then,  on  the  same  foundation  as  schools, 
courts  of  justice,  or  any  other  institution  for  the  public  good.  They 
all  stand  on  the  same  ground  of  public  utility,  and  the  same  objec- 
tions can  as  well  be  argued  against  one  as  the  other ;  and  the  right 
or  duty  of  the  state  to  take  the  money  of  its  members  for  such  pur- 
poses, has  no  concern  or  connection  with  the  consciences  of  men. 
The  benefits  of  these  institutions  are  common  to  all ;  and  all  find 
their  indemnity  for  the  money  they  contribute,  in  the  advantages 
they  derive  from  them. 

But  it  is  said  that  religion  is  so  important  that  men  will  volunta- 
rily support  it.  This  is  the  argument  most  relied  upon,  and  merits 
examination.  In  the  first  place,  it  proceeds  wholly  on  a  mistake  ; 
for  it  supposes  that  men  will  always  do  what  is  for  their  permanent 
welfare  to  do.  This  is  not  true.  Reason  is  against  it  ;  all  expe- 
rience is  against  it.  It  is  for  the  welfare  of  all  men  to  be  industri- 
ous and  honest,  and  yet  the  world  abounded  with  indolence  and 
fraud.  He  appealed  to  the  knowledge  of  gentlemen  who  heard  him. 
to  say,  if  the  Christian  religion  was  as  well  supported  in  those  parts 
of  our  country,  where  there  was  no  legal  provision  for  it,  as  it  was 
in  this  State  ;  if  the  Sabbath  was  as  well  observed  ;  if  public  wor- 
ship was  as  well  attended  ;  if  there  were  as  many  ministers  sup- 
ported in  proportion  to  the  wealth  and  population  ;  if  there  was  as 
high  a  tone  of  morals  and  manners.  He  admitted  that  there  was 
such  a  stock  of  religious  habit  and  feeling  in  the  State,  that  it 
would  require  time  to  diminish  or  exhaust  it ;  but  he  did  believe, 
that  if  the  provision  in  the  constitution  was  abolished,  we  should 
perceive  its  decline  in  our  day,  and  our  posterity  would  witness  a 
still  more  lamentable  declension.  Take  the  case  of  a  small  parish, 
of  which  there  were  hundreds  in  the  Commonwealth,  just  able  to 
support  a  Christian  teacher.  One  man  living  at  a  distance  drops 
off ;  another  and  another  follows,  till  the  burthen  becomes  too 
oppressive  for  the  few  who  remain.  The  pastor  is  compelled  to 
leave  his  flock  ;  and  all  the  countless  blessings  of  public  worship, 
Christian  instruction  and  Christian  ordinances  are  lost  forever.  He 
could  not  contemplate  such  a  moral  picture  without  emotion.  On 
this  subject  reason  and  experience  agreed.  It  was  dangerous  to 
place  the  duty  and  the  pecuniary  interest  of  men  in  competition  with 
each  other.  There  was  enough  of  disinclination  to  moral  duty, 
without  adding  the  sordid  aid  of  money.  Place  the  duty  of  men 
in  one  scale,  their  disinclination  and  money  in  the  other,  and  which 


MASSACHUSETTS    CONVENTION.  371 

will  preponderate  ?     The  tendency  of  such  a  competition  was  to 
weaken  or  sever  the  last  ties  that  bind  men  to  their  highest  duties. 
The  effect  of  a  voluntary  support  might  also  be  considered  in  rela- 
tion to  the  teachers  themselves.     And  here  he  would  ask  if  it  did 
not  create  a  feeling  of  dependence,  unfavorable  to  the  discharge  of 
the  sacred  office  of  a  Christian  minister,  whose  duty  it  was  to  de- 
clare   the  whole  counsel   of  God,   whether   men   would    hear,   or 
whether  they  would  forbear.    It  would  also  operate  as  a  discourage- 
ment to  young  men  of  education  and  virtue   from  entering   into  a 
profession  where  the  means  of  support  were  so  uncertain  and  pre- 
carious.    The  profession  was  truly  a  learned  one,  and  much   labor 
and  expense   were   necessary  to  qualify  a  man  for   its  proper  and 
useful  exercise.     He  would  add  inducements  instead  of  discourage- 
ments.    He  considered  the  two  provisions   in  the  constitution — 
the  one  providing  for  the  establishment  of  schools,  and  the  other  for 
a  system  of  moral   instruction  at  the  public  expense,  as  laying  the 
only  sure  foundation  of  free  government.     They  were  connected, 
supporting  and  supported  by  each  other.     Knowledge  by  itself  was 
power ;  and  it  was  a  power  to  do  evil  as  well  as  good ;  but  con- 
nected with  virtue,  it  became  the  instrument  of  good  to  the  State, 
and  good   only.     He  admired  the  wisdom,  the  foresight,  and  the 
virtue  of  the  men  who  thus  laid  the  foundations  of  the  State  broad 
and  deep.     It  must  rest  upon  these  or  it  must  fall,  for  nothing  else 
can  sustain  it.     He  knew  nothing  that  had  more  of  moral  grandeur 
in  it  than  the  example  of  a  poor  man's  son,  availing  himself  of  the 
means  provided  by  the  State,  of  instruction  in  useful  knowledge  and 
virtue,  rising  to  the  highest  offices,  and  becoming  a  blessing  and  an 
ornament  to  his  country.     This  is  the  best  commentary  upon  the 
excellence  of  our  constitution.     It  is  thus  that  the  inequalities  of 
condition  are  compensated  for ;  it  is  thus  that  men  are  made  equal, 
and  kept  so.     It  is  these  great  results  in  political  science,  which  we 
begun  with,  that  are  now  shaking  and  heaving  the  ancient  govern- 
ments of  Europe.     Mr.  D.  then  proceeded  to  answer  some   of  the 
various  arguments  and  objections  that  had   been  urged  on  the  other 
side,  and  concluded  by  saying,  that  he  revered  the  right  of  private 
judgment  in  matters  of  religion  as  much  as  any  other  man.     He 
considered  it  as  one  of  those   important  results  in  human  affairs, 
which  required  time   and  labor  and   suffering  to  accomplish.     He 
venerated  the  names  of  Luther.  Melancthon,  Cranmer,  and  Chilling- 
worth.     It  was  by  such  men,  and  by  the  heroic  sufferings  of  their 
followers,  that  this  great  good  had  come  down  to  us.     He  would 
preserve  it.     The  constitution  did  preserve  it;  for  no  case  of  perse- 
cution for  conscience'  sake  ever  did  or  ever  can  arise  under  it. 

Mr.  Slocum  of  Dartmouth  said  that  he  should  approach  the  tem- 
ple with  a  fearful  hand.  Nothing  could  occupy  the  attention  of  the 
committee  of  a  more  important  nature.  He  hoped  they  should 
amend  the  constitution,  so  that  they  might  leave  it  as  a  legacy  to 
their  children,  that  they  might  have  something  to  walk  upon. 
When  he  heard  the  discourse  of  the  learned  gentleman  from  Boston, 


372  MASSACHUSETTS    CONVENTION. 

he  thought  there  was  a  proposition  to  turn  the  pastors  out  to  feed 
on  grass,  like  Nebuchadnezzar  ;  but  upon  reflection,  he  found  it 
was  a  question  about  encouraging  religion  and  morality.  He  was 
in  favor  of  the  resolution  of  the  gentleman  from  Pittsfield.  If  it 
should  not  be  adopted,  they  should  not  have  that  free  exercise  of 
religion,  there  had  been  so  much  blood  spilt  for.  They  had  abol- 
ished a  part  of  the  article,  authorizing  the  Legislature  to  compel 
attendance.  Suppose  they  should  have  churches,  and  ministers  to 
preach,  and  nobody  to  go  and  hear.  In  what  situation  should  they 
be  in  then  ?  Were  they  afraid  that  religion  would  not  stand  on  its 
own  bottom.  If  it  would  not,  it  should  be  propagated  like  Mahom- 
etanism,  with  the  sword  in  one  hand,  and  the  Bible  in  the  other. 
If  it  was  supported  by  law,  it  would  be  a  law  religion.  If  the 
report  of  the  committee  was  adopted  it  would  not  make  Christians 
— it  would  make  a  hundred  hypocrites  to  one  Christian — religion 
would  not  flourish.  He  was  of  opinion  that  if  this  resolution  was 
engrafted  into  the  constitution,  the  people  would  rise  up  and  say, 
Well  done  thou  good  and  faithful  servant. 

Mr.  Flint  of  Reading  admitted  that  religion  was  an  affair  between 
God  and  man,  but  it  was  an  affair  that  also  had  something  to  do 
between  man  and  man.  Our  fathers  came  to  this  country  because 
they  were  oppressed  ;  they  came  with  the  Bible  in  their  pockets, 
and  religion  in  their  hearts.  They  established  laws  for  the  pro- 
tection and  promotion  of  religion.  The  framers  of  the  constitution 
also  declared  that  it  was  necessary  to  provide  for  the  support  of 
public  worship,  and  that  it  was  the  duty  of  the  Legislature  to  make 
such  provision.  He  believed  they  were  sincere  in  their  belief  that 
legal  provision  Avas  necessary,  and  that  they  decided  correctly.  But 
it  was  now  proposed  to  reject  this  clause  in  the  constitution.  He 
argued  that  it  was  necessary  to  make  legal  provision  for  the  support 
of  religious  instructions,  that  there  might  be  sufficient  inducement 
for  young  men  to  qualify  themselves  for  the  office  of  public  instruct- 
ors. It  was  a  profession  which  required  thorough  preparation  and 
long  study  to  make  a  man  useful  in  it.  If  religion  was  encouraged 
by  the  government  and  the  people,  it  would  have  the  blessing  of 
God  and  would  nourish.  He  hoped  this  part  of  the  constitution 
would  be  preserved,  that  it  might  be  handed  down  to  posterity,  as  a 
proof  of  the  regard  of  our  ancestors  and  of  the  present  generation 
for  religion. 

Mr.  Wilde  of  Newburyport  held  it  to  be  his  duty  to  give  his 
testimony  against  this  resolution.  He  should  have  been  much  sur- 
prised at  the  motion  of  the  gentleman  from  Pittsfield,  if  he  had  not 
been  apprised  that  similar  sentiments  had  been  entertained  by  some 
persons  in  some  parts  of  the  country.  He  was  still  surprised  at  the 
form  in  which  the  proposition  was  introduced.  The  preamble  was 
copied  in  substance  from  the  third  article  of  the  declaration  of  rights. 
It  declares  that  as  the  happiness  of  a  people,  and  the  preservation  of 
government  depend  upon  religion  and  morality ;  and  as  these  can- 
not be  generally  diffused  but  by  the  institution  of  public  worship, 


MASSACHUSETTS     CONVENTION.  373 

no  person  shall  by  law  be  compelled  to  join  or  support  any  congre- 
gation or  religious  society  whatever.  If  this  was  a  fair  conclusion 
from  the  premises,  he  did  not  understand  the  gentleman's  logic. 
As  the  article  stands,  the  syllogism  is  perfect  and  the  conclusion 
irresistible — not  that  no  person  shall  be  compelled  to  support,  but 
that  the  people  have  a  right  to  give  the  Legislature  power  to  require 
the  support  of  religious  institutions.  If  religion  and  morality  are 
essential  to  the  happiness  of  a  people,  and  if  these  cannot  be  dif- 
fused but  by  the  institution  of  public  worship  and  public  instruc- 
tions in  religion  and  morality,  it  follows  that  it  is  the  duty  of 
government  to  provide  for  the  support  of  this  worship  and  these 
instructions.  But  it  does  not  follow  that  because  they  are  neces- 
sary they  ought  not  to  be  supported  by  the  civil  government. 

The  gentleman  who  introduced  this  resolution  had  no  objection 
to  the  support  of  schools  of  morality  ;  but  did  not  schools  of  mo- 
rality and  the  institutions  of  religion  depend  on  the  same  principle  ? 
The  provision  of  the  constitution  is,  that  the  Legislature  shall  from 
time  to  time  authorize  and  require  the  towns,  parishes,  and  religious 
societies,  to  make  suitable  provision  for  the  support  and  maintenance 
of  public  teachers  of  piety,  religion,  and  morality.  If  the  power 
is  taken  from  the  Legislature  to  interfere  in  matters  of  religion, 
they  will  have  no  right  to  interfere  in  matters  of  morality.  If 
the  gentleman's  proposition  is  adopted,  his  concession  in  favor  of 
morality  will  amount  to  nothing.  The  two  are  inseparably  united. 
Morality  cannot  exist  without  religion.  There  may  be  a  kind  of 
morality  with  a  false  religion  ;  it  will  be  more  or  less  pure  according 
to  the  approach  of  religion  to  the  truth  ;  but  without  religion  it  has 
no  sanction  or  power ;  it  can  have  no  influence.  Without  the 
sanctions  of  religion,  men  will  follow  their  own  desires,  their  pleas- 
ures, the  dictates  of  their  passions.  Morality  has  no  sanctions,  and 
can  be  no  check.  Take  away  religion,  and  you  take  away  all 
restraints  on  the  passions,  on  vice,  on  immorality.  Not  all  the 
standing  armies  on  earth  could  support  a  government  without  the 
restraints  of  religion  ;  armies  themselves  could  not  exist  without  it. 
Nothing  was  so  contrary  to  the  experience  of  mankind  as  that  mo- 
rality could  be  supported  without  religion.  It  is  among  the  objects 
of  civil  government  to  guard  the  property,  person,  and  liberty  of 
individuals.  How  were  these  to  be  guarded  ?  Not  merely  by  the 
vigilance  of  the  civil  magistrate  ;  not  by  inflicting  punishment  ; 
no  doubt  these  have  a  very  salutary  effect  on  the  community  ;  but 
much  more  was  to  be  attributed  to  the  institutions  of  religion  ;  to 
instructions  which  address  themselves  to  all  classes  of  people  ; 
which  make  an  impression  on  the  minds  of  the  young. — infinitely 
more  than  to  all  the  vigilance  of  the  magistrate.  Without  these 
institutions  vigilance  would  be  vain.  Few  crimes  are  committed 
without  the  expectation  of  escaping  detection.  It  is  therefore  the 
influence  of  religious  and  moral  impressions  alone  thai  restrains  a 
great  portion  of  mankind  from  the  commission  of  crime.  Do  pa- 
rents wish  their  children  to  be  exposed  to  temptation  without  being 


374  MASSACHUSETTS     CONVENTION. 

guarded  by  the  influence  of  these  institutions  ?  Every  one  would 
say  no.  He  was  aware  that  the  gentleman  who  had  advocated  the 
resolution,  had  conceded  the  influence  of  these  institutions.  But  he 
had  dwelt  upon  this  part  of  the  proposition  because  he  considered 
the  other  part  equally  clear.  He  would  beg  gentlemen  to  pause 
upon  one  or  two  considerations.  It  was  said  that  religion  would  be 
supported  without  the  aid  of  government.  Granting  this,  it  did  not 
follow  that  it  would  be  injured  by  having  the  aid  of  government. 
The  government  has  great  means,  power,  and  influence  ;  if  the 
measure  is  good,  how  can  we  say  that  it  shall  not  exercise  these  ? 
It  had  been  said  that  religion  was  not  to  be  propagated  by  human 
means.  This  he  denied.  He  could  demonstrate  that  there  was  no 
truth  in  it.  If  it  had  been  the  intention  of  Providence  to  propagate 
religion  without  human  means,  it  might  have  been  so  ordained. 
But  the  question  is,  how  has  religion  been  propagated  ?  It  has  been 
by  human  agency.  Gentlemen  have  conceded  it.  The  gentleman 
from  Boston  spoke  of  the  influence  of  the  Bible  Society ;  that  was 
one  of  the  human  means.  Everything  that  we  know  contradicts 
the  position  that  human  means  can  be  dispensed  with.  If  it  is  true, 
the  instruction  of  children  by  their  parents  is  a  work  of  supereroga- 
tion. The  reverend  gentleman  himself  is  engaged  in  a  work  that 
is  not  necessary.  But  it  is  insisted  that  civil  government  cannot 
interfere,  without  invading  the  rights  of  conscience.  We  have  heard 
of  persecutions  and  massacres  ;  but  what  have  these  to  do  with  the 
third  article  ?  The  framers  of  the  constitution  have  guarded  all 
points.  They  were  sensible  that  the  people  have  no  right  to 
restrain  a  man  in  the  exercise  of  the  rights  of  conscience.  They 
have  gone  farther  than  the  proposition  of  the  gentleman  from 
Pittsfield,  to  show  how  the  Legislature  may  provide  for  the  support 
of  religious  worship,  without  invading  the  rights  of  conscience. 
Gentlemen  appear  to  overlook  this.  It  is  because  other  nations 
have  interfered  with  the  rights  of  conscience,  and  because  they 
have  on  that  account  acquired  a  prejudice  against  religious  estab- 
lishments, that  they  apprehend  mischief  from  this  provision.  Every 
nation  has  a  right  to  establish  religion  as  one  of  the  supports  of 
government.  They  have  the  right  to  establish  a  particular  religion, 
if  they  see  fit,  reserving  to  individuals  the  right  of  worshipping  God 
according  to  the  dictates  of  their  own  conscience.  He  did  not  say 
it  was  expedient — far  from  it,  but  that  they  have  a  right.  The 
fault  of  those  who  have  exercised  this  right  is,  that  they  have  under- 
taken to  say  that  every  individual  shall  worship  in  a  particular 
mode.  This  is  what  they  have  no  right  to  interfere  in.  If  the 
third  article  is  not  already  sufficiently  guarded,  let  it  be  so.  It 
may  require  modifications,  and  he  was  willing  to  make  them.  He 
agreed  with  the  gentleman  from  Lynn  in  most  that  he  had  said. 
That  gentleman  admitted  the  importance  of  religious  instruction ; 
but  he  contended  that  it  did  not  need  the  aid  of  government.  No 
doubt  without  this  aid  there  would  be  a  great  deal  of  religion.  In 
Boston  and  in  other  large-  towns  it  would  be  liberally  supported, 


MASSACHUSETTS    CONVENTION.  375 

because  they  have  the  power  and  the  disposition.  How  did  they 
get  the  principle  that  will  induce  them  to  furnish  this  support  ? 
Was  it  not  from  the  influence  of  the  protection  which  has  heretofore 
been  given  to  it  ?  Where  did  the  principle  which  gave  rise  to  the 
British  Bible  Society  spring  from  ?  Was  it  not  from  the  religious 
establishment,  which  was  so  much  censured  ?  No  doubt  there 
would  always  be  religion  in  the  world.  It  was  not  the  question 
whether  religious  people  would  support  religious  institutions  ;  but 
was  it  right  and  equal  that  men  who  have  no  regard  for  religion 
should  not  give  their  aid  to  the  support  of  religious  establishments, 
which  were  acknowledged  to  be  so  essential  to  the  interests  of  the 
community  ?  He  thought  not.  Gentlemen  had  spoken  of  diffi- 
culties which  had  arisen  under  the  third  article.  These  might  be 
avoided.  One  man  had  lost  300  dollars — because  he  would  not  pay 
his  money  without  a  lawsuit.  He  should  not  suppose  he  would 
have  conscientious  scruples  about  paying  money.  The  gentleman 
from  Maiden  had  had  a  lawsuit,  and  had  spent  thirty  dollars  to  save 
twenty.  This  was  very  likely,  but  it  was  no  argument.  There 
will  be  lawsuits ;  and  it  is  no  argument  against  the  law  that  there 
are  men  who  will  lead  honest  people  into  difficulty.  The  reverend 
gentlemen  had  maintained  that  with  the  Jews  religion  was  not 
supported  by  the  civil  government.  He  had  been  of  a  very  differ- 
ent opinion.  He  had  supposed  if  there  ever  was  a  nation  where 
religion  was  supported  by  law  more  than  any  other,  it  was  the 
Jewish  nation.  The  government  itself  was  a  theocracy,  and  reli- 
gion was  interwoven  with  the  whole  frame  of  it.  He  believed  that 
however  the  Convention  might  dispose  of  the  third  article,  this 
proposition  would  not  prevail.  He  was  satisfied  that  gentlemen 
would  not  wipe  away  the  admirable  principles  contained  in  the 
article,  merely  from  the  apprehension  that  there  might  be  some 
difficulty  arising  from  it. 

Mr.  Martin  of  Marblehead  said  that  the  provision  of  the  consti- 
tution had  stood  unimpaired  from  1780  to  1804,  when  the  Legisla- 
ture undertook  to  revise  it.  Chief  Justice  Parsons  decided  that  he 
would  know  no  religious  society  unless  it  was  an  incorporated  one. 
He,  Mr.  M.,  was  then  a  member  of  the  Legislature,  and  the  table  of 
the  house  was  crowded  with  petitions  for  acts  of  incorporation. 
Our  Saviour  said  that  where  two  or  three  were  assembled  together 
in  his  name,  there  he  would  be  in  the  midst  of  them — but  the  com- 
mittee have  said,  that  it  shall  take  twenty  to  make  a  religious  so- 
ciety. He  argued  that  religion  would  be  supported  without  any 
legislative  provision,  and  complained  of  inconveniences  which  per- 
sons were  subjected  to  who  were  not  of  the  prevailing  denomina- 
tion.    He  was  in  favor  of  the  resolution. 

Mr.  Qjjincy  said  he  did  not  rise  to  take  part  in  the  debate,  but  to 
suggest  that  it  was  not  proper  at  this  time  to  take  the  question,  as 
there  were  gentlemen  who  were  desirous  of  expressing  their  sentiments 
on  this  subject.  He  wished  also  that  gentlemen  might  have  an  op- 
portunity to  analyze  the  proposition,  and  for  that  purpose  that  it 


376  MASSACHUSETTS    CONVENTION. 

might  be  printed.  The  proposition  appeared  to  him  to  be  entirely 
inconsequential.  If  he  could  suppose  the  gentleman  from  Pittsfield 
to  be  of  a  mischievous  humor,  he  should  think  he  intended  to  bring 
that  grave  assembly  into  ridicule.  His  proposition  is — as  religion 
and  morality  are  essential  to  the  happiness  of  a  people,  and  as  they 
cannot  be  supported  without  the  institution  of  public  worship, 
therefore  no  person  shall  be  classed  for  the  support  of  public  wor- 
ship. He  moved  that  the  committee  should  rise  and  report  progress. 
The  motion  was  agreed  to — and 
The  House  adjourned. 


Friday,  December  22. 
The  Convention  met  at  9  o'clock,  and  attended  prayers  offered 
by  the  Rev.  Mr.  Jenks.     The  journal  being  read, 
Mr.  Draper  of  Spencer  moved  the  following  order  : 

Ordered,  That  no  original  proposition  to  alter  and  amend  the  constitution  shall  be 
received  by  the  Convention  after  Monday  next. 

He  explained  his  object  to  be  to  expedite  the  progress  of  business 
and  aid  in  bringing  it  to  a  close. 

Mr.  Qjjincy  thought  that  such  an  order  could  not  have  any  effect 
in  leading  to  the  object  intended.     It  was  negatived. 

On  motion  of  Mr.  Q,uincy,  the  order  of  the  day  being  the  unfin- 
ished business  of  yesterday  was  postponed,  and  the  Convention 
went  into  committee  of  the  whole  on  the  report  of  the  select  com- 
mittee, to  whom  was  recommitted  their  former  report  on  that  part 
of  the  constitution  relating  to  the  governor,  militia,  &c.  Mr.  Dana 
in  the  chair.  The  resolutions  reported  by  the  committee  as  sub- 
stitutes for  those  which  they  had  before  reported,  were  then  read  as 
follows : 

1st.  Resolved,  That  it  is  expedient  so  to  alter  the  constitution  as  to  provide,  that 
the  day  on  which  votes  are  annually  to  be  given  in  for  governor,  shall  in  future  be 
the  day  of  instead  of  the  first  Monday  of  April :  and  that  the  "  first  Wednes- 
day in  January  "  be  substituted  for  the  "  last  Wednesday  in  May,"  in  every  place 
where  these  words  occur  in  the  first  section  of  second  chapter  of  the  second  part  of 
the  constitution. 

2d-  Resolved,  That  it  is  expedient  to  alter  the  constitution  so  that  hereafter  the 
governor,  with  the  counsellors,  or  any  four  of  them,  may  hold  a  council  for  ordering 
and  directing  the  affairs  of  the  Commonwealth. 

3d.  Resolved,  That  it  is  expedient  so  to  alter  the  constitution,  as  no  longer  to  re- 
quire the  governor  to  dissolve  the  General  Court  on  the  day  preceding  the  day  of  the 
general  election. 

4th,  Resolved,  That  it  is  expedient  so  to  alter  the  constitution  as  to  provide,  that 
notaries  public  shall  hereafter  be  appointed  by  the  govenor,  with  advice  of  council, 
in  the  same  manner  as  judicial  officers  are  appointed. 

5th.  Resolved,  That  it  is  expedient  so  to  alter  the  constitution  as  to  provide,  that 
officers  commissioned  to  command  in  the  militia  may  be  removed  from  office  in  such 
manner  as  the  Legislature  may  by  law  prescribe. 

The  blank  in  the  first  resolution  was  filled  by  inserting  the  first 
Monday  of  November,  and  the  five  resolutions  were  severally  read 


MASSACHUSETTS    CONVENTION.  377 

and  agreed  to  ;  some  remarks  explanatory  of  the  views  of  select 
committee  being  made  on  several  of  them  by  Mr.  Varnum. 

The  following  resolution,  reported  by  the  same  committee  on  a 
proposition  referred  to  them,  was  then  read : 

Resolved,  That  it  is  not  expedient  to  alter  the  constitution,  so  as  to  provide, 
that  no  able  bodied  citizen,  between  the  ages  of  eighteen  and  forty-five,  be  exempt 
from  military  duty,  or  an  equivalent  therefor,  the  judges  of  the  supreme  judicial 
court,  ministers  of  the  gospel,  and  quakers  excepted. 

Mr.  Varnum  said  that  to  adopt  the  proposition  would  be  running 
counter  to  the  long  established  practice  of  the  Commonwealth,  of 
exempting  militia  officers  who  had  served  a  certain  number  of  years, 
judges  of  courts  and  other  persons,  whom  the  General  Court  had 
seen  fit  to  exempt.  The  Legislature  were  perfectly  competent  to 
act  on  the  subject,  and  if  any  change  in  the  laws  was  expedient  they 
could  make  the  change.  No  provision  in  the  constitution  was  nec- 
essary. 

Mr.  Freeman  of  Sandwich  spoke  against  the  resolution. 

The  resolution  was  then  agreed  to. 

The  following  resolution  reported  by  the  same  committee  was 
taken  up : 

Resolved,  That  it  is  expedient  so  to  amend  the  constitution,  as  to  provide,  that 
in  case  the  offices  of  secretary  and  treasurer  of  the  Commonwealth,  or  either  of  them 
shall  become  vacant,  from  any  cause,  during  the  recess  of  the  General  Court,  the 
governor,  with  advice  of  the  council,  under  such  regulations  as  the  Legislature  may 
prescribe,  shall  appoint  a  fit  and  proper  person  to  such  vacant  office,  who  shall  hold 
the  same,  until  a  successor  shall  be  appointed  by  the  General  Court. 

The  resolution  was  agreed  to. 

The  following  resolution  reported  by  the  same  committee  was 
then  taken  up : 

Resolved,  That  it  is  not  expedient  so  to  alter  the  constitution,  as  that  the  captains 
and  subalterns  of  the  militia  shall  be  elected  by  the  members  of  their  respective 
companies,  without  regard  to  age. 

Mr.  Varnum  said  that  the  committee  thought  it  inexpedient  to 
make  an  alteration  that  should  give  minors  a  righr  of  voting  in  the 
choice  of  militia  officers.  They  were  denied  the  right  in  all  other 
elections,  and  he  saw  no  reason  why  a  different  principle  should  be 
adopted  in  relation  to  the  important  elections  of  militia  officers. 

Mr.  Fisher  of  Lancaster  moved  to  amend  the  resolution  by  strik- 
ing out  the  word  "  not  " — so  as  to  reverse  the  import  of  the  resolu- 
tion. 

The  question  was  taken  on  the  amendment,  and  decided  in  the 
affirmative — 147  to  135. 

The  question  recurred  on  the  resolution  as  amended. 

Mr.  Nichols  of  South  Reading  spoke  in  favor  of  the  resolution. 
Doubts  had  been  entertained  whether  minors  were  eligible  to  office 
because  they  were  not  voters.  But  if  they  were  excluded  from 
holding  office  in  the  militia  it  would  be  a  great  injury.  They  form 
the  best  officers ;  they  are  the  soul  of  the  soldiery. 

Mr.  Valentine  of  Hopkinton  thought  it  of  great  importance,  and 
48 


378  MASSACHUSETTS     CONVENTION. 

it  was  the  opinion  of  the  officers  of  the  militia  generally,  that  minors 
performing  militia  duty,  should  have  the  right  of  voting  for  subaltern 
officers.  When  the  choice  was  made  it  was  necessary  that  the 
whole  company  should  be  called  together  because  there  was  no  way 
of  distinguishing  who  were  under  twenty-one  years  of  age  and  who 
were  over.  Those  who  were  under  age  were  therefore  liable  for  a 
fine  for  non-attendance.  They  were  often  elected  to  subaltern 
offices  and  frequently  commanded  companies,  and  made  the  best 
officers  in  the  militia.  Men  under  age  were  much  more  useful  than 
those  over  thirty  and  forty.  A  man  thirty  years  old  is  not  worth 
much  in  the  ranks,  and  above  forty  he  is  worth  less  than  nothing 
in  the  common  militia  companies.  He  said  it  had  been  the  practice, 
before  the  time  of  Governor  Sullivan,  for  minors  to  vote  in  the  choice 
of  their  officers.  But  it  was  decided  by  him,  no  doubt  correctly, 
that  the  practice  was  unconstitutional.  Since  that  time  it  had  been 
prohibited.  This  prohibition  had  created  great  uneasiness  and  con- 
fusion in  the  militia,  and  had  greatly  diminished  its  spirit  and  utility. 
Mr.  Mattoon  of  Amherst  was  one  of  the  select  committee  and 
was  in  favor  of  the  alteration.  He  had  experienced  great  difficulty 
from  the  denial  of  the  right  of  voting  to  minors  enrolled  in  the 
militia.  A  great  deal  depended  on  the  young  men  when  they  first 
came  into  the  trainbands,  and  it  had  a  very  injurious  effect  on  them 
to  refuse  their  votes  in  the  choice  of  their  officers. 

Mr.  Varnum  said  that  minors  had  in  some  instances  been  chosen 
as  officers  in  the  militia.  But  as  far  as  his  observation  had  extended 
they  were  very  few.  But  who  were  they  chosen  by  ?  It  was  by 
men  of  mature  age  who  were  competent  to  judge  of  the  qualifica- 
tions for  office.  He  thought  it  a  violation  of  general  principles  to 
permit  minors  to  vote  for  officers  of  the  militia,  and  to  exclude  them 
from  voting  in  all  other  elections. 

Mr.  Valentine  mentioned  another  consideration  which  had  before 
slipped  his  mind.  Minors  when  elected  to  be  officers  were  entitled, 
as  soon  as  chosen,  to  give  their  votes  in  the  choice  of  field  officers. 
The  number  of  minors  so  elected  within  his  knowledge  was  con- 
siderable. The  commanding  officer  of  the  regiment  was  the  most 
important  officer  in  the  militia,  yet  the  minor  who  was  prohibited 
from  voting  in  the  choice  of  captain  and  subalterns,  might  be  elected 
to  the  command  of  a  regiment,  which  was,  in  fact,  the  most  import- 
ant office  in  the  militia. 

Mr.  Martin  was  in  favor  of  the  resolution  as  amended.  Wash- 
ington was  an  officer  when  he  was  under  twenty-one  years  of  age. 
He  hoped  that  such  boys  as  he,  would  not  be  deprived  of  the  right 
of  voting  for  their  own  officers. 

Mr.  Fat  of  Cambridge  was  on  the  select  committee  but  he  did 
not  agree  to  the  report.  He  was  in  favor  of  the  resolution  as  it  was 
amended.  His  reason  was,  that  it  would  tend  to  produce  harmony 
in  the  militia.  The  duties  of  the  militia  were  burdens,  and  it  was 
proper  to  make  them  as  light  as  possible.  It  was  a  different  case 
from  the  choice  of  civil  officers.     The  minors  serving  in  the  militia, 


MASSACHUSETTS    CONVENTION.  379 

may  be  perfectly  competent  to  judge  of  the  qualifications  for  a  sub- 
altern office  and  not  competent  to  judge  in  other  matters. 

Mr.  Talbo*  of  Stoughton  was  in  favor  of  the  resolution  as  it  was 
amended.  In  other  elections  minors  have  their  parents  and  guardians 
to  vote  for  them.     It  is  not  so  in  the  militia. 

Mr.  Mack  of  Middlefield  said,  that  when  the  constitution  was 
adopted,  young  men  were  required  to  serve  in  the  militia  at  sixteen 
years  of  age.  They  were  not  now,  until  they  were  eighteen.  There 
might  be  a  good  reason  for  not  admitting  minors  to  vote  at  that  time 
which  would  not  apply  now.  The  militia  have  great  burdens  to 
bear,  and  they  should  be  so  treated  that  they  may  bear  them  cheer- 
fully. 

Mr.  Hoyt  of  Deerfield  would  not  object  to  the  proposition  if  it 
could  be  confined  to  the  specific  object  now  in  view.  But  if  we 
once  opened  the  door  to  persons  under  age  to  vote  for  officers  of  the 
militia,  we  should  be  obliged  to  do  it  so  that  they  may  vote  for 
officers  of  every  description.  It  will  be  argued  that  every  male  per- 
son of  fifteen  years  of  age  is  liable  to  a  tax,  and  why  should  they 
not  be  entitled  to  vote  for  the  representatives  who  are  to  assess  the 
tax  on  themselves  ?  If  he  was  sure  it  would  stop  here,  he  would 
vote  for  the  resolution. 

Mr.  Parker  of  Boston  said,  that  the  same  constitution  which  pro- 
vided that  minors  should  vote  in  the  election  of  militia  officers, 
would  provide  that  they  should  not  vote  for  other  officers. 

Mr.  Apthorp  of  Boston  was  opposed  to  the  resolution,  because  he 
thought  that  the  arguments  in  favor  of  it  would  be  urged  for  ex- 
tending the  right  to  other  elections. 

Mr.  Sullivan  of  Boston  was  in  favor  of  the  resolution.  He  said 
that  the  constitution  of  the  United  States  and  of  the  Commonwealth 
required  young  men,  not  of  age,  to  perform  certain  important  duties. 
They  were  important,  not  only  to  those  who  were  in  the  militia, 
but  were  very  material  to  those  who  stay  at  home.  The  men  so 
employed  were  to  be  commanded  by  certain  persons,  to  be  elected 
by  a  part,  or  the  whole  of  those  who  were  in  the  ranks.  Was  it  to 
be  supposed  that  any  part  of  them  would  serve  so  cheerfully  if  de- 
prived of  their  voice  in  choosing  those  under  whom  they  may  be 
called  to  risk  their  lives.  The  minor  is  warned  to  all  meetings  for 
the  choice  of  officers.  If  he  is  absent  he  must  pay  a  fine  ;  if  he  is 
there  he  can  do  nothing.  It  is  a  hard  duty  to  serve  in  the  militia, 
for  which  there  is  very  little  encouragement.  This  was  not  connected 
with  any  other  elections.  It  was  a  case  by  itself.  If  minors  were 
permitted  to  vote,  it  would  relieve  one  of  the  embarrassments  that 
attend  the  service.  If  the  militia  was  to  be  kept  up  at  all,  it  must 
be  done  by  the  influence  and  example  of  those  to  whom  this  article 
refers. 

Mr.  Beach  of  Gloucester  spoke  in  favor  of  the  motion.  He  had 
been  eight  years  an  officer  in  the  militia,  and  it  was  the  opinion  of 
officers  that  it  would  be  useful  to  extend  the  right  of  voting  to  all 


380  MASSACHUSETTS    CONVENTION. 

who  were  enrolled  in  the  service.  One  third  of  the  officers  in  the 
brigade  to  which  he  belonged  were  minors. 

Mr.  Slocum  spoke  in  favor  of  the  resolution. 

The  question  was  taken  on  agreeing  to  the  resolution  as  amended, 
and  decided  in  the  affirmative. 

A  motion  that  the  committee  rise  and  report  progress,  was  nega- 
tived—139  to  192. 

The  following  resolution,  reported  by  the  select  committee  above 

described,  was  then  taken  up : 

Resolved,  That  it  is  not  expedient  so  to  alter  the  constitution,  as  to  make  any  pro- 
vision therein,  respecting  persons  who  have  religious  scruples  about  bearing  arms. 

Mr.  Varnum  said,  that  the  select  committee  considered  this  as  a 
legislative  act,  and  were  of  opinion  that  the  Legislature  would  make 
such  exceptions  from  time  to  time  as  they  should  think  proper.  He 
did  not  think  it  expedient  by  a  constitutional  act  to  deprive  the 
Legislature  of  the  power  to  make  such  regulations  as  experience 
should  show  to  be  necessary. 

Mr.  Enoch  Mtjdge  of  Lynn  was  happy  to  hear  the  explanation  of 
the  chairman  of  the  select  committee,  and  the  opinion  that  the 
Legislature  had  the  right  to  grant  the  relief  which  was  demanded. 
But  he  said  that  in  the  constitution  of  other  states,  permanent  pro- 
vision had  been  made  for  this  object — and  he  wished  it  might  be 
done  in  the  constitution  of  this  Commonwealth.  He  said  that  there 
were  persons  besides  Quakers  who  had  religious  scruples  against 
bearing  arms,  and  it  was  useless  to  enrol  them  and  to  attempt  to 
compel  them  to  perform  a  service  which  their  consciences  would  not 
permit  them  to  perform.  They  were  willing  to  bear  their  portions 
of  the  public  burthens,  and  if  they  were  permitted  to  pay  a  sum 
equivalent  to  the  performance  of  military  duty,  to  be  appropriated 
to  the  maintenance  of  the  poor  or  to  the  support  of  government, 
they  would  be  satisfied. 

Mr.  Hoyt  thought  that  ample  provision  was  made  already  for  the 
object — authority  was  given  by  the  laws  of  the  United  States,  for 
regulating  the  militia,  to  the  legislatures  of  the  states  to  make  such 
exemptions  as  they  should  see  fit.  He  quoted  a  passage  from  the 
law  in  support  of  his  opinion.     He  was  opposed  to  the  resolution. 

Mr.  Tillinghast  of  Wrentham  thought  the  gentleman  did  not 
understand  the  state  of  the  case.  The  law  of  the  United  States,  to 
be  sure,  gave  the  legislatures  of  the  states  power  to  exempt  such  per- 
sons as  they  should  see  fit.  But  if  the  constitution  of  the  Common- 
wealth deprived  them  of  the  power,  they  could  not  exercise  the  dis- 
cretion. He  hoped  the  resolution  would  not  prevail.  There  were 
other  persons  besides  Quakers  who  had  conscientious  scruples  against 
bearing  arms,  and  he  saw  no  reason  why  they  should  not  be  entitled 
to  the  same  exemption  from  the  obligation.  He  thought  that  the 
adoption  of  an  amendment  that  should  extend  the  exemption  to  all 
persons  who  had  conscientious  scruples,  was  but  an  act  of  justice  to 
those  who  have  those  scruples,  and  that  it  would  have  a  most  bene- 
ficial effect  on  the  community. 


MASSACHUSETTS    CONVENTION.  381 

The  question  was  taken  and  the  resolution  adopted. 

The  following  resolution  reported  by  the  same  committee  was 
then  taken  up : 

Resolved,  That  it  is  not  expedient  so  to  alter  the  constitution,  as  to  provide,  that  in 
future  the  captains,  subalterns,  non-commissioned  officers  and  privates  of  the  militia 
of  the  Commonwealth,  shall  severally  be  exempted  from  the  payment  of  a  poll  tax, 
during  the  time  they  may  be  liable  to  do  military  duty. 

The  resolution  was  agreed  to,  and  the  committee  rose. 

The  resolutions  were  then  severally  read  in  convention  a  first 
time,  and  passed  to  a  second  reading  and  assigned  to  tomorrow  at  9 
o'clock. 

On  the  reading  of  the  resolution  relating  to  religious  scruples 
against  bearing  arms,  Mr.  Ware  of  Boston  moved  to  amend  it  by 
striking  out  the  word  "  not,"  so  as  to  reverse  the  import  of  the  reso- 
lution. Some  debate  arose,  after  which  the  motion  to  amend  was 
negatived  and  the  resolution  passed. 

Leave  of  absence  was  then  granted  to  Mr.  Prince  of  Newbury- 
port,  Mr.  Weston  of  Middleborough,  Mr.  Abraham  Lincoln  of  Wor- 
cester, Mr.  Sibley  of  Sutton,  and  Mr.  Holmes  of  Kingston. 

Declaration  of  Rights. — The  House  went  into  committee  of  the 
whole  on  the  declaration  of  rights  ;  Mr.  Varnum  in  the  chair. 

On  motion  of  Mr.  Parker  of  Boston,  Mr.  Childs  of  Pittsfield  had 
leave  to  alter  his  resolution  so  as  to  read  as  follows  : 

As  the  happiness  of  a  people  and  the  good  order  and  preservation  of  civil  govern- 
ment essentially  depend  upon  piety,  religion  and  morality  ;  and  as  these  cannot  be 
generally  diffused  through  a  community  but  by  the  public  worship  of  God ;  and  as 
the  public  worship  of  God  will  be  best  promoted,  by  recognizing  the  inalienable 
right  of  every  man  to  render  that  worship  in  the  mode  most  consistent  with  the  dic- 
tates of  his  own  conscience  ;  therefore  no  person  shall  by  law,  &c.  (as  in  Wednes- 
day's proceedings.) 

Mr.  Williams  of  Beverly  said,  that  some  gentlemen  seemed  to 
suppose,  that  all  who  were  in  favor  of  the  present  proposition,  were 
in  favor  of  removing  all  religion  from  the  State.  He  wished  to  re- 
move this  impression.  He  considered  that  religion  was  of  great  con- 
sequence to  the  Commonwealth,  and  that  the  government  should 
protect  all  persons  in  the  enjoyment  of  their  religious  rights  and 
privileges.  He  was  opposed  to  the  present  provision  in  the  consti- 
tution. He  understood  that  the  third  article  allows  a  tax  which 
favored  one  religious  denomination,  and  he  understood  that  the  re- 
port of  the  select  committee  had  the  same  object.  He  thought  the 
terms  of  the  constitution  were  not  so  explicit  and  intelligible  as  some 
gentlemen  had  asserted.  He  admitted  the  premises  in  the  third 
article,  but  not  the  conclusion.  He  considered  that  liberty  of  action 
and  of  opinion  was  given  by  the  constitution  to  only  one  religious 
denomination,  that  of  Congregationalists.  He  denied  that  the  opera- 
tion of  the  constitution  had  been  equal,  as  the  gentleman  from  Con- 
cord had  asserted  ;  but  he  said  some  persons  had  been  obliged  to  pay, 
where  they  had  received  no  benefit.  Sometimes  the  taxes  of  minor 
children  were  paid  to  the  support  of  public  worship  where  the  father 
attended,  and  where  they  did  not.     He  understood  it  had  been  said 


382  MASSACHUSETTS    CONVENTION. 

that  persons  might  go  from  one  society  to  another  at  their  pleasure. 
He  denied  the  fact.  He  mentioned  that  in  one  town  there  was  a 
society,  comprising  almost  all  the  inhabitants,  and  that  afterwards  a 
society  of  Congregationalists  grew  up  there,  and  taxes  paid  to  the 
treasurer  were  applied  to  the  support  of  this  worship  in  consequence 
of  the  provisions  of  the  constitution.  He  thought  this  was  unequal. 
He  agreed  that  contracts  between  the  teachers  and  societies  ought  to 
be  enforced ;  although  some  gentlemen  thought  otherwise.  He  did  not 
apprehend,  if  the  present  proposition  were  adopted,  that  the  Sabbath 
would  be  neglected,  that  public  schools  and  other  benevolent  insti- 
tutions would  go  down  ;  for  we  had  experience  to  the  contrary.  He 
objected  that  it  was  impossible  to  enforce  the  present  provisions. 
He  thought  it  unfair  to  say  that  religion  did  not  take  care  of  itself 
originally,  because  it  was  protected  by  its  author  ;  for  its  author  had 
no  power  to  protect  it  ;  except  so  far  as  miracles  went — our  Saviour 
derived  no  aid  from  the  civil  arm.  He  said  that  under  the  word 
Protestant,  which  applies  to  a  great  many  varieties  of  religion,  the 
government  had  established  one  particular  denomination.  He  de- 
nied the  propriety  of  mixing  civil  and  religious  institutions.  When  in 
the  dark  ages,  from  which  we  ought  not  to  take  example,  the  amal- 
gamation of  these  two  distinct  things  was  made,  it  was  done  for  im- 
proper purposes,  and  was  attended  with  mischief.  The  people  had 
no  right  to  establish  any  religion,  whether  Protestant  or  Catholic,  or 
any  other.  He  hoped  the  substance,  at  least,  of  the  proposition  of 
the  gentleman  from  Pittsfield  would  be  adopted. 

Mr.  S  prague  of  Maiden  said  it  was  a  tyranny  in  the  highest  de- 
gree, to  compel  a  man  to  worship  in  a  manner  contrary  to  the  dic- 
tates of  his  conscience.  He  thought  the  second  and  third  articles 
clashed  amazingly ;  the  second  article  he  admired,  the  third  he 
thought  absurd.  Religion  was  an  affair  between  God  and  our  own 
souls.  He  concluded  with  eight  lines  from  the  poet,  the  purport  of 
which  was,  that  it  was  vain  to  attempt  to  bind  by  human  laws  the 
soul,  which  was  accountable  to  God  alone. 

Mr.  Foster  of  Littleton  said  he  was  opposed  to  the  present  pro- 
positions, and  to  the  report  of  the  select  committee.  He  agreed  with 
the  gentleman  from  Beverly  that  when  a  contract  was  made  be- 
tween a  religious  teacher  and  his  flock,  it  ought  to  be  enforced  ;  but 
the  gentleman  in  admitting  this  gave  up  his  argument  that  the  civil 
government  should  not  interfere  in  the  support  of  religion.  In 
answer  to  the  gentleman  from  Boston  (Mr.  Baldwin)  he  would  say 
that  the  same  sacred  person  who  commanded  his  disciples  to  take 
no  purse  or  scrip,  also  said  that  the  laborer  was  worthy  of  his  hire. 
He  cited  other  examples  from  scripture  to  show  the  propriety  of 
clergymen  having  a  regular  support.  Gentlemen  had  said  this  should 
be  done  freely.  He  said  it  was  done  so  under  our  constitution. 
Though  the  name  of  a  tax  was  become  odious,  nothing  could  be 
more  voluntary  than  the  people  taxing  themselves.  Gentlemen  had 
talked  a  great  deal  about  church  and  state — about  civil  authority, 
(that  awful  creature,)  about  the  base  amalgamation  of  religion  and 


MASSACHUSTTS    CONVENTION.  383 

civil  government.  They  say  that  religion  and  civil  government 
cannot  exist  together.  If  that  was  the  case  then  one  of  them  must 
go  out  of  the  world.  But  he  did  not  apprehend  any  such  result. 
The  magistrate  did  not  put  off  religion  when  he  put  on  his  robe  of 
office — men  did  not  cease  to  be  Christians  by  entering  into  the 
Legislature.  The  Legislature  was  a  body  of  men  who  were  to  see 
that  contracts  were  fulfilled.  There  was  nothing  in  this  contrary  to 
religion.  If  religion  could  take  care  of  itself,  why  does  it  not  go  to 
India  of  its  own  accord,  without  the  aid  of  the  numerous  societies 
for  propagating  the  gospel  ?  No  ;  God  requires  that  means  should 
be  used  for  the  support  of  religion.  Much  had  been  said  about 
other  states  having  no  such  provisions  in  their  constitutions  ;  and 
what  was  the  consequence  ?  They  were  continually  sending  to  us 
for  ministers,  and  begging  for  contributions  to  support  them.  In 
respect  to  the  union  of  civil  authority  with  religion,  he  would  state 
a  fact, — that  between  the  years  1809  and  1814,  there  were  seventy 
religious  societies  made  application  to  be  incorporated  ;  and  of  these 
there  was  but  one  of  the  denomination  of  Congregationalists.  Why 
make  these  applications,  if  the  civil  government  is  of  no  use  to  re- 
ligion ?  There  was  no  subordination  of  sects  established  by  our 
constitution.  The  provision  in  this  respect  was  complete.  If  there 
was  any  society  that  did  not  enjoy  equal  privileges  with  every  other, 
he  would  not  leave  that  assembly  without  doing  everything  in  his 
power  to  effect  that  object.  He  did  not  believe  the  third  article 
could  be  rendered  much  better  by  the  wisdom  of  any  body  of  men. 
It  enabled  people  to  worship  where  they  pleased.  There  was  a 
proposition  before  the  committee  to  suit  the  case  of  those  unfortu- 
nate persons  who  do  not  belong  anywhere,  and  who  do  not  intend 
to.  He  would  have  them  belong  somewhere,  and  behave  them- 
selves like  men,  and  bear  their  proportion  in  the  support  of  society. 
Religion  was  so  essential  to  private  happiness  and  public  security 
that  he  would  not  do  anything  to  lessen  its  influence.  This  de- 
pended a  great  deal  on  the  ability  of  the  public  teachers.  But  if  you 
have  no  preacher  except  a  beggar,  what  will  follow  ?  He  had  been 
told  that  it  had  already  become  a  common  saying — the  more  igno- 
rance the  more  grace.  He  hoped  we  should  never  give  up  that  prin- 
ciple in  our  constitution  which  lies  at  the  root  of  all  that  is  valuable 
and  sacred  in  society. 

Mr.  Dean  of  Boston  said  he  was  not  concerned,  lest  he  should  be 
thought  to  be  inimical  to  the  Christian  religion  ;  that  if  Christianity 
had  done  nothing  more,  than  to  teach  men  that  they  had  equal 
rights,  it  would  be  entitled  to  everlasting  veneration.  He  venerated 
the  class  of  men  who  devoted  their  lives  to  its  services,  and  he  wished 
that  they  might  have  an  ample  support.  The  question  is  not  whe- 
ther we  shall  abolish  this  religion,  but  in  what  manner  it  can  be  best 
supported,  so  as  to  be  most  beneficial  to  mankind.  He  was  on  the 
side  of  those  who  were  in  favor  of  a  support,  by  the  voluntary  con- 
tributions of  the  lovers  of  this  religion ;  and  for  several  reasons. 
In  the  first  place,  the  kingdom  of  this  religion  was  different  from  the 


384  MASSACHUSETTS    CONVENTION. 

kingdom  of  this  world,  and  ought  not  to  be  governed  by  the  laws 
of  this  world.  Civil  governors  do  not  know  what  belongs  to  the 
Christian  religion,  and  are  therefore  incapable  of  bestowing  rewards 
and  imposing  restraints  in  regard  to  it.  He  was  glad  to  hear  his  col- 
league, (Mr.  Baldwin)  yesterday  mention  the  evils  which  have  arisen 
from  establishing  national  religions.  When  our  religion  had  its 
greatest  power,  and  spread  with  the  greatest  velocity  it  was  not  ow- 
ino-  to  miracles,  or  to  force,  but  to  argument.  It  was  never  intended 
by  the  author  of  religion,  that  it  should  be  established  and  promul- 
gated by  the  civil  power,  or  by  compulsion.  It  was  intended  that 
its  teachers  should  be  supported,  not  upon  air,  but  by  the  voluntary 
contributions  in  temporal  things,  of  those  who  received  from  them 
spiritual  things.  Another  objection  to  the  article  as  it  now  stands, 
was,  that  it  made  the  teachers  too  independent  of  those  who  were 
instructed.  A  mutual  dependence  was  productive  of  mutual  benefit. 
It  was  said  that  government  had  a  right  to  levy  taxes.  He  agreed 
that  it  had  for  political  purposes ;  but  it  did  not  thence  follow,  that 
they  had  a  right  to  support  public  worship  by  taxes.  It  was  said 
that  religion  must  be  supported  by  means.  It  was  true  ;  but  it  should 
be  by  spiritual  means,  and  not  by  the  same  as  those  by  which  we 
manage  our  temporal  concerns.  If  it  is  left  to  heaven  to  support 
religion,  religion  will  be  supported. 

On  motion  of  Mr.  Fay  of  Cambridge,  the  committee  rose — 221  to 
66 — reported  progress  and  had  leave  to  sit  again. 

A  motion  was  made  to  adjourn — negatived,  118  to  236. 

A  motion  was  made  that  when  the  House  adjourned,  it  should 
adjourn  to  half  past  3  o'clock,  P.  M. 

Mr.  Foster  and  Mr.  Martin  opposed  the  motion,  and  Mr.  Marcy 
of  Greenwich  spoke  in  favor  of  it.  The  motion  was  decided  in  the 
affirmative. 

The  House  then  adjourned. 

Afternoon  Session. 

The  Convention  met  according  to  adjournment,  and  went  again 
into  committee  of  the  whole,  on  the  unfinished  business  of  the  fore- 
noon, viz.,  the  resolution  offered  by  Mr.  Childs. 

Mr.  Childs  spoke  at  some  length  in  support  of  the  resolution. 

Mr.  Holmes  of  Rochester  said  that  he  had  attended  carefully  to 
the  arguments  pro  and  con,  but  there  were  some  doubts  on  his  mind 
that  had  not  been  settled.  It  was  a  principle  that  had  been  repeat- 
edly recognized  by  gentlemen  on  both  sides,  that  the  duty  of  relig- 
ious worship  is  an  affair  that  civil  government  has  nothing  to  do 
with,  and  lies  exclusively  between  God  and  the  soul.  That  it  was 
an  indefeasible  right  of  every  one  to  worship  God  according  to  the 
dictates  of  his  own  conscience,  was  universally  conceded.  But  it 
is  contended  that  notwithstanding  he  has  this  right,  the  community 
has  a  right  to  impose  upon  him  a  tax  to  support  what  he  believes  to 
be  heresy.  Mr.  H.  wished  gentlemen  to  reconcile  these  two  propo- 
sitions.    He  did  not  see  the  difference  between  being  obliged  to 


MASSACHUSETTS    CONVENTION.  385 

attend  on  religious  instructions  against  his  conscience,  and  advancing 
money  to  support  such  instructions.  He  knew  that  money  was  not 
religion.  But  we  were  as  much  obliged  to  withhold  money  demanded 
for  supporting  heresy  as  to  exercise  the  duties  of  religious  worship 
according  to  our  own  conscience.  He  saw  no  difference  in  the  prin- 
ciple ;  if  there  was  any,  he  wished  gentlemen  would  show  it.  He  |  m  >- 
ceeded  to  notice  the  arguments  of  gentlemen  against  the  resolution. 
The  gentleman  from  Boston,  in  answer  to  the  argument  that  religion 
would  support  itself  wherever  it  was  not  interrupted  by  the  hands 
of  power,  said  that  in  the  primitive  ages,  Christ  was  on  earth  and 
did  not  need  the  support  of  the  civil  authority.  Mr.  H.  asked  why 
he  needed  it  now  ;  it  must  be  either  because  he  had  power  then, 
which  he  has  not  now,  or  because  he  has  not  the  inclination  now  to 
support  the  cause  of  religion.  The  gentleman  might  take  which 
result  he  pleased.  The  gentleman  from  Boston  had  taken  a  view 
of  the  decalogue  to  show  that  it  had  been  the  foundation  of  laws 
since.  But  he  omitted  a  very  material  commandment,  Worship  the 
Lord  thy  God  and  him  only  shalt  thou  serve.  This  was  pronounced 
under  the  severest  penalties.  The  decalogue  enjoined  two  classes 
of  duties,  those  to  our  Maker,  and  those  to  our  neighbor.  The  first 
of  these  did  not  come  within  the  powers  of  the  Legislature.  The 
gentleman  from  Chelsea  had  said  that  when  Constantine  assumed 
the  power  to  establish  religion  it  was  corrupted  ;  but  who  is  to  judge  ? 
Had  not  Constantine  the  same  right  to  judge  that  we  have  ?  It  Was 
proposed  to  substitute  the  word  Christian  for  protestant  in  the  third 
article.  He  was  at  a  loss  to  know  what  either  of  the  words  meant. 
We  had  a  right  to  limit  our  religion  to  either,  or  to  the  religion  of 
the  Grand  Lama  as  much  as  either.  There  was  no  reason  to  be  giv- 
en but  that  the  majority  of  the  Convention  was  in  favor  of  it.  An- 
other argument  was,  that  the  people  have  a  right  to  make  such  pro- 
vision as  shall  be  for  the  general  good.  Who  is  to  judge  what  is  for 
the  general  good  ?  If  the  Legislature  can  judge  of  this,  there  is  no 
need  of  a  constitution.  The  gentleman  from  Littleton  had  quoted 
the  passage  of  scripture,  they  that  preach  the  gospel  shall  live  by 
the  gospel — but  he  did  not  tell  what  it  was  to  live  by  the  gospel. 
He  should  have  said  live  by  the  law.  The  same  gentleman  had 
asked,  why  we  support  missionary  societies  and  bible  societies  ;  was 
there  ever  a  cent  of  the  money  for  the  support  of  these  raised  by  a 
tax  ?  Gentlemen  apprehended  that  if  this"  resolution  passed,  in  a 
very  short  time  gross  darkness  would  envelop  the  people.  He  asked 
if  that  was  the  case  now,  in  the  town  of  Boston  ?  Did  they  not 
support  religion  as  well  as  in  towns  were  it  was  supported  by  a  tax  ? 
Mr.  Saltonstall  said  he  rose  with  unusual  embarrassment,  be- 
cause the  subject  had  been  so  ably  discussed,  and  still  more,  because 
of  its  intrinsic  importance  ;  he  thought  it  more  important  than  any 
that  had  been  considered.  It  is  a  trifling  question  comparatively, 
how  the  council  shall  be  chosen,  or  whether  there  be  any  council : 
whether  the  senate  be  founded  on  valuation  or  population,  or  how 
the  house  of  representatives  is  modified — we  shall  have  a  Legislature 
49 


386  MASSACHUSETTS    CONVENTION. 

so  constructed  as  to  insure  a  free  government — but  strike  out  the 
constitutional  provision  for  the  support  of  public  worship,  and  who 
can  tell  the  consequences  ?  As  was  said  by  the  able  gentleman  from 
Boston,  (Mr.  Blake)  we  have  heretofore  been  inspecting  the  super- 
structure— we  are  now  examining  the  foundation,  and  he  doubted 
not  the  result  of  the  examination  would  be  that  the  foundation  would 
be  found  laid  firm  and  deep,  and  capable  of  sustaining  a  superstruc- 
ture that  may  rear  its  lofty  head  to  the  skies.  Two  questions  arise 
— first  as  to  the  right  of  government,  and  second,  whether  there  is 
anything  in  the  subject — religion — which  should  prevent  or  restrict 
this  right.  There  is  no  subject  upon  which  such  inadequate  views  are 
entertained  as  the  duty,  and  of  course  the  right,  of  government.  A 
stranger  acquainted  with  this  subject,  would  be  surprised  at  some 
of  our  debates  upon  the  rights  of  the  people  in  framing  a  govern- 
ment. They  have  a  right  to  adopt  such  measures  as  will  promote 
the  happiness  of  the  people  and  the  good  order  and  preservation  of 
civil  society.  Whatever  tends  to  promote  these  great  objects,  it  is 
the  duty  of  government  to  cherish  and  support,  because  these  are  the 
objects  for  which  government  is  instituted.  The  design  of  govern- 
ment is  not  merely  the  security  of  life  against  those  who  would 
attack  it,  and  property  against  those  who  would  plunder  it,  but  to 
improve  the  character  and  condition  of  those  who  are  subject  to  it. 
Mr.  S.  enlarged  upon  this  point.  Is  it  true  then,  that  the  happiness 
of  a  people  and  the  good  order  and  preservation  of  civil  government, 
do  essentially  depend  upon  piety,  religion  and  morality  ?  All  seem 
to  admit  this,  and  yet  their  tendency  to  promote  these  great  objects 
has  not  been  sufficiently  considered.  The  Christian  religion  is  the 
great  bond  of  civil  society.  It  teaches  us  that  we  are  all  children  of 
one  beneficent  Parent,  who  constantly  watches  over  us  for  good,  who 
notices  all  our  actions,  and  will  hereafter  reward  or  punish  us,  as  they 
have  been  good  or  evil.  It  teaches  us  that  God  is  everywhere  present, 
that  he  knows  our  most  secret  thoughts,  that  he  sees  us  where  no 
human  eye  can,  and  will  call  us  to  account  when  human  laws  can- 
not reach  us.  What  an  immense  effect  would  the  single  doctrine  of 
accountability  have  on  the  conduct,  if  properly  realized.  Our  religion 
also  contains  the  most  comprehensive  as  well  as  minute  directions 
for  our  conduct  towards  each  other,  declared  under  the  most  tremen- 
dous sanctions — all  our  hopes  of  happiness,  all  our  fears  of  suffering  ; 
directions,  which  in  proportion  as  they  are  obeyed,  supersede  the 
necessity  of  human  laws.     But  this  is  not  all — 

"  How  small,  of  all  the  ills  that  men  endure, 
That  part  which  laws  or  kings  can  make  or  cure." 

It  is  on  the  observance  of  duties  of  imperfect  obligation,  which  hu- 
man laws  cannot  reach,  but  which  are  the  great  care  of  religion, 
that  our  happiness  essentially  depends.  Can  the  regulations  of  so- 
ciety make  us  kind  and  affectionate  and  faithful  in  the  relations  we 
bear  in  life  ?  Religion  extends  to  the  heart — human  laws  concern 
actions  alone.  Religion  cleanses  the  fountain  that  it  may  send  forth 
pure  streams  to  refresh  society.     Christianity  also  furnishes  a  model 


MASSACHUSETTS    CONVENTION.  387 

of  the  character  she  would  form.  Moreover,  it  reveals  to  us  the  per- 
fections of  Jehovah,  the  great  object  of  worship  and  source  of  all 
good,  and  commands  us  to  be  "  perfect  as  he  is  perfect."  Who  then 
can  doubt  that  the  happiness  of  a  people  and  the  good  order  and 
preservation  of  civil  government  do  essentially  depend  upon  such 
a  system  of  "  piety,  religion  and  morality."  These  are  principles 
in  which  all  agree — the  essential  principles  of  piety,  religion  and 
morality.  The  constitution  then  asserts  that  these  cannot  be  gen- 
erally diffused,  but  by  the  institution  of  public  worship  and  instruc- 
tion. Mr.  S.  enforced  this.  It  then  follows  as  a  necessary  infer- 
ence, that  to  promote  these  great  objects,  the  people  have  a  right  to 
invest  the  Legislature  with  the  power,  &c.  (as  in  the  constitution.) 
And  why  not  this  as  a  civil  institution,  as  well  as  any  other  means 
for  the  same  end  ?  It  provides  a  most  beautiful  and  liberal  system  ; 
making  it  the  duty  of  towns  and  parishes  to  make  this  provision,  but 
consistently  with  perfect  religious  freedom.  No  denomination  is  es- 
tablished. The  election  is  given  expressly  to  each  society,  and  of 
course  to  the  majority  of  each.  There  is  no  more  hardship  in  being 
obliged  to  contribute  towards  the  support  of  a  minister  than  any 
other  teacher.  You  may  have  no  children  to  send  to  school,  or  may 
dislike  his  opinions,  or  his  mode  of  instruction,  or  may  be  willing  to 
contribute  to  the  same  object  in  some  other  way — but  the  tax  you 
must  pay.  The  right  of  society  in  both  cases  rests  on  the  same 
foundation — the  right  to  tax  for  the  common  good ;  and  the  reason 
is  the  same,  the  common  benefit  received,  as  members  of  society. 
Objections  have  been  made  to  the  abstract  right  of  government,  and 
to  the  particular  provisions  of  the  constitution.  It  is  strange  how 
much  sensitiveness  there  is  on  this  subject.  No  one  hesitates  to 
confer  on  government  the  power  of  inflicting  any  punishment,  even 
death  itself,  for  any  crime  ;  but  the  moment  you  would  attempt  by 
the  influence  of  religion  to  destroy  sin  in  embryo,  an  alarm  is  ex- 
cited!  Mr.  S.  then  answered  the  objections  made  against  granting 
the  Legislature  any  power  on  the  subject  of  religion, — as,  that  "  re- 
ligion is  under  the  protection  of  the  Almighty,  who  will  take  care 
of  his  church  :"  that  "  his  kingdom  is  not  of  this  world."  His  king- 
dom is  not  of  this  world  in  the  highest  sense,  because  our  final  reward 
will  be  in  another ;  but  in  a  most  important  sense  it  is,  because  it  would 
make  us  good  members  of  society — would  prepare  us  for  a  better  state 
by  making  us  good  in  all  the  relations  of  life.  We  are  told  that  the 
kingdoms  of  this  world  will  become  the  kingdoms  of  our  Lord.  May 
not  governments  cooperate  in  this  glorious  design  ?  (Mr.  S.  noticed 
other  objections,  which  we  have  not  room  to  insert. )  We  are  told  that 
the  constitution  grants  exclusive  favors  to  one  denomination.  Will 
gentlemen  read  the  constitution  ?  No  language  can  be  plainer.  It 
is  most  explicitly  declared  that  "  every  denomination  shall  be  equally 
under  the  protection  of  the  law."  It  is  elevated  far  above  all  partial 
considerations — it  regards  all  in  the  equal  favor  as  all  agreeing  in  the 
same  essential  principles,  and  leading  to  the  same  great  object,  the 
Father  of  all.     If  one  parish  alone,  in  some  places  where  there  are 


388  MASSACHUSETTS    CONVENTION. 

several  societies,  have  the  right  of  taxing  non-resident  lands,  &c.  it 
is  because  they  have  been  left  in  the  possession  of  this  right.  When 
a  part  of  a  parish  (referred  to  Lynn)  became  Methodists,  they  sep- 
arated, and  petitioned  for  an  incorporation  with  certain  powers,  which 
were  granted,  have  they  any  right  to  complain  ?  And  so  of  the 
other  societies,  and  the  little  remnant  is  left  with  the  obligation  to 
support  public  worship,  and  would  you  deprive  them  of  their  ancient 
rights  ?  Would  you  punish  them  for  adhering  to  the  religion  of  their 
fathers  ?  There  is  nothing  exclusive  in  this — it  would  be  the  same, 
should  the  majority  of  a  parish  be  of  any  denomination.  This  prin- 
ciple is  not  confined  to  parishes  ;  it  is  the  same  as  to  towns.  When 
a  part  is  separated,  the  remainder  has  all  the  rights  of  the  town  not 
expressly  granted  to  the  new  corporation. 

It  is  said  also  to  be  inoperative.  It  is  indeed  too  inoperative,  and 
ought  to  be  made  more  effectual ;  but  this  objection  does  not  well 
come  from  those  who  complain  of  it  as  exclusive  and  oppressive. 
Some  little  cases  of  individual  hardship  have  been  stated,  and  some 
law  suits  have  grown  out  of  it,  in  which  however  those  who  com- 
plain, claim  always  to  have  obtained  a  remedy.  What  general  law 
is  there,  or  what  part  of  the  constitution  against  which  such  objec- 
tions may  not  be  made  ?  They  prove  nothing  against  a  great 
principle.  But  it  is  said  some  do  not  go  to  meeting,  and  shall  they 
pay  for  what  they  receive  no  benefit  ?  They  do  receive  a  benefit 
in  the  greater  security  of  everything  dear  to  them.  One  objection 
was  not  to  be  expected — "that  ministers  were  now  too  indepen- 
dent !"  The  great  objection  that  meets  us  at  every  turn  is  that 
"  religion  will  take  care  of  itself."  Where  has  this  experiment  been 
tried  ?  Not  in  Europe.  I  know  not  where  except  in  Asia  Minor  ; 
and  where  are  now  the  "seven  churches"?  Those  golden  candle- 
sticks have  long  since  been  removed.  We  are  referred  to  the  sup- 
port of  dissenters  in  England,  and  of  the  various  denominations 
here,  but  does  it  appear  that  this  support  would  have  been  given, 
except  religion  had  been  established  in  England,  and  provided  for 
in  our  constitution  ?  In  this  country  the  fearful  experiment  is  still 
in  process,  whether  religion  will  take  care  of  itself,  and -as  far  as 
tried,  it  has  not  been  successful.  Mr.  S.  then  referred  to  several 
states,  where,  except  in  large  cities,  very  few  settled  clergymen  of 
education  are  to  be  found.  As  to  the  unequal  operation  of  this 
article  in  Boston,  &c,  by  its  own  terms  it  does  not  operate  on  any 
place  where  voluntary  provision  is  made.  Its  indirect  influence  does 
much  everywhere.  Mr.  S.  made  objections  to  the  report  of  the 
select  committee,  and  showed  in  what  manner  he  thought  the 
resolution  under  consideration  would  produce  the  same  effect  as  ex- 
punging the  third  article.  Is  it  then  expedient  to  abolish  this 
provision  ?  It  is  for  the  advocates  of  the  change  to  prove  this  be- 
yond all  question.  Show  the  evil  it  has  produced.  Point  to  the 
oppression  it  has  caused.  Whose  rights  of  conscience  have  been 
violated  ?  Go  not  back  a  century  for  cause  of  persecution — point 
them  out  under  the  constitution.     If  a  few  cases  of  individual  hard- 


MASSACHUSETTS     CONVEMTION.  389 

ship  have  happened  in  the  course  of  forty  years,  cannot  the  same 
thing  be  said  of  every  part  of  the  constitution  ?  And  is  it  wonder- 
ful, under  a  system  extending  through  the  Commonwealth  and 
operating  on  so  many  thousands  ?  Mr.  S.  then  argued  that  there 
had  been  no  oppression,  no  general  complaint — referred  to  the  small 
vote  for  a  Convention  as  proof  that  no  great  evil  was  pressing  on  the 
community.  But  from  the  clamor  that  has  since  been  raised,  one 
would  suppose  we  had  been  groaning  under  an  inquisition  !  It  is 
strange  how  men  are  carried  away  by  sounds.  What  excesses  have 
been  committed  under  the  name  of  "liberty,"  what  excitement  may 
be  produced  in  a  perfectly  free  country  by  the  cry  of  "  Priestcraft" 
— "Law-religion,"  and  "Toleration!"  This  subject  is  closely  in- 
terwoven with  our  history.  We  ought  not  to  make  a  constitution 
on  abstract  principles  merely.  What  arrangement  it  is  expedient  to 
make  here,  is  a  very  different  question  from  what  it  might  be  in 
some  other  states,  where  a  similar  provision  has  never  existed.  The 
support  of  religion  has  always  been  a  great  care  of  our  government. 
Massachusetts  is  a  religious  Commonwealth.  But  for  the  devotion 
of  our  fathers  to  religion,  the  spot  where  we  are  assembled,  might 
still  have  been  a  wilderness.  It  was  this  that  inspired  them  with 
courage  to  brave  the  dangers  of  the  ocean,  and  land  on  these  shores. 
Their  first  care  was  the  support  of  public  worship.  How  soon  did 
they  lay  the  foundation  of  our  venerable  University,  and  "  Christo 
et  Ecclesia.  "  was  it  dedicated  !  As  the  settlements  extended,  the 
little  colonies  of  families  always  took  with  them  a  minister,  as  the 
pastor  of  the  flock,  and  one  of  the  first  houses  erected  was  always  a 
place  of  worship.  To  provide  religious  instruction  Avas  always  an 
important  part  of  the  municipal  concerns  of  each  town,  and  the  same 
laws  were  made  on  the  subject  of  schools  and  public  worship. 
Through  the  whole  period  of  our  history,  religion  and  education  had 
gone  hand  in  hand,  and  united  in  forming  the  character  of  the  peo- 
ple. The  temples  of  worship  and  instruction  have  been  side  by  side. 
Our  religious  establishments  are  part  of  our  system  of  education, 
schools  of  a  higher  order,  to  furnish  instruction  in  "  piety,  religion 
and  morality."  How  great  and  good  must  have  been  the  influence 
of  such  institutions.  To  gather  together  in  the  house  of  God,  and 
there  be  reminded  of  their  common  relation  to  our  Father  and  to 
each  other  ;  to  listen  to  the  sublime  doctrines  and  moral  precepts  of 
Christianity — what  a  great  though  silent  influence  must  it  have  had 
— "it  falls  like  the  gentle  rain  from  heaven" — "it  distills  like  the 
early  dew."  Mr.  S.  then  described  the  manner  in  which  the  State 
had  been  divided  into  parishes,  each  with  its  pastor,  &c;  the  saluta- 
tary  effect  produced  on  the  character  of  the  people,  and  the  cause  of 
learning  and  civil  liberty.  Mr.  S.  thought  the  adoption  of  the  reso- 
lution would  end  in  the  destruction  of  very  many  religious  societies, 
not  immediately  ;  the  good  influence  of  our  institutions  may  prevent 
that.  Our  temples  of  worship  will  decay  and  fall  around  us.  Those 
beautiful  spires  that  now  ornament  our  towns  and  villages  will  fall 
to  the  ground.     The  effect  on  the  character  of  the  clergy  will  be 


390  MASSACHUSETTS     CONVENTION. 

pernicious ;  the  inducements  to  enter  into  the  profession  will  be 
lessened,  and  there  will  be  no  permanency  in  contracts  with  minis- 
ters. The  dissolution  of  so  many  religious  corporations  will  be  an 
act  of  great  violence.  We  have  heard  much  of  the  corporate  rights 
of  towns — we  must  not  touch  them,  even  if  necessary  to  correct  the 
greatest  evil  under  the  constitution,  the  numerous  house  of  represent- 
atives— no,  corporate  rights  and  privileges  are  sacred  things.  And 
are  not  the  rights  of  parishes  quite  as  ancient  and  sacred  and  much 
more  important  ?  If  any  evils,  correct  them — but  why  destroy 
several  hundred  corporations  ?  Allusions  have  been  made  to  the 
errors  of  our  ancestors.  Time,  which  tends  to  the  abuse  of  all  hu- 
man institutions,  has  improved  ours.  The  bigotry  and  persecution 
are  gone — nothing  remains  but  the  good  influence.  Never  was 
there  a  denomination  of  Christians  less  sectarian,  and  proselyting, 
and  persecuting,  than  the  prevailing  denomination  in  Massachusetts 
have  been  under  this  constitution.  I  say  it  with  confidence.  Some 
have  strange  fears  of  an  establishment  !  But  what  is  to  bea  estab- 
lished ?  How  is  it  to  be  brought  about?  Will  the  government 
undertake  the  work  ?  Have  the  church  accumulated  treasures  for 
this  purpose  ?  Have  we  a  body  of  aspiring  ecclesiastics  aiming  at 
this  object  ?  But  how  can  an  establishment  be  made  under  a  con- 
stitution which  declares  that  "  no  subordination  of  one  sect  to 
another  shall  ever  be  established  by  law,"  except  the  broad  estab- 
lishment of  Christianity.  And  this  without  interfering  with  the 
rights  of  conscience  of  any  man.  The  question  may  now  be, 
whether  a  great  moral  revolution  shall  take  place  in  the  Common- 
wealth. If  this  article  is  struck  out,  what  a  shock  will  it  give  to  the 
moral  sentiments  and  feelings  of  thousands. — the  pious,  the  moral 
part  of  the  community,  who  feel  that  we  have  no  right  to  deprive 
them  of  what  was  designed  for  the  good  of  posterity  as  well  as  our 
own.  I  stand  as  in  the  presence  of  our  ancestors;  they  conjure  us 
not  to  destroy  what  they  planted  with  so  much  care,  and  under  the 
influence  of  which  we  have  so  long  flourished  ;  but  to  transmit  to 
posterity  what  is  only  a  trust-estate  in  us.  I  stand  as  in  the  presence 
of  posterity,  calling  upon  us  not  rashly  to  abolish  what  was  intended 
for  their  good — their  entailed  estate,  their  precious  inheritance.  Let 
us  not  in  one  hour  destroy  the  venerable  work  of  two  centuries ! 
Above  all,  on  this  day,  the  anniversary  of  the  landing  of  the  Pilgrims 
— when  two  centuries  have  rolled  away,  and  we  by  means  of  then- 
principles  and  their  institutions  have  grown  up  and  become  a  great 
nation — let  us  not  reject  the  great  principles  of  our  prosperity — let 
us  not  overthrow  all  that  was  dear  to  them.  This  will  be  a  poor 
tribute  to  their  memory,  a  poor  expression  of  our  gratitude.  No — 
let  us  bring  a  better  offering — let  us  cherish  those  principles  and 
institutions,  and  transmit  them  to  our  children  and  to  children's 
children  to  the  latest  posterity.  This  will  be  the  most  durable 
monument  to  the  memory — the  best  memorial  of  the  character  of 
our  forefathers. 

Mr.   Hazard  of  Hancock  rose  only  to  express  his  sentiments  in 


MASSACHUSETTS    CONVENTION.  391 

favor  of  the  resolution.  He  said  a  spectator  hearing  these  debates 
would  be  led  to  think  that  the  question  was  whether  any  person 
should  be  suffered  to  worship  God  hereafter  or  not.  He  considered 
the  question  to  be,  whether  the  article  proposed  by  the  gentleman 
from  Pittsfield,  should  be  substituted  for  the  third  article  of  the  dec- 
laration of  rights.  He  hoped  the  motion  would  prevail.  As  far  as 
his  knowledge  extended,  whenever  the  aid  of  law  had  been  resorted 
to  for  supporting  religious  instruction,  it  had  produced  great  dissen- 
sions and  difficulty.  If  he  believed  that  by  retaining  the  article  in 
the  constitution  it  would  make  good  men  he  should  be  in  favor  of 
it.    But  he  thought  it  would  make  two  hypocrites  to  one  Christian. 

Mr.  Sullivan  of  Brookline  rose  merely  to  state  a  historical  fact. 
He  had  hoped  that  the  gentleman  from  Salem,  who  had  almost 
exhausted  the  subject,  would  have  alluded  to  the  history  of  this 
particular  article.  As  early  as  the  year  1654,  it  being  found  that  the 
support  of  the  clergy  was  not  sufficiently  provided  for  by  voluntary 
contributions,  a  law  was  passed  authorizing  the  court  of  sessions  to 
levy  a  tax  for  the  purpose,  whenever  the  people  did  not  voluntarily 
make  suitable  provision.  In  1692  a  similar  act  passed,  and  in  1703 
another  substantially  the  same.  In  this  last  act,  Quakers  and  Bap- 
tists were  excepted  from  the  obligation.  In  1T60  another  act  passed 
recognizing  the  power  of  the  people  to  support  religion  in  this  way, 
and  the  necessity  of  such  a  power.  Then  came  the  constitution  in 
1780,  the  provisions  of  which  are  substantially  the  same  with  the 
laws  before  mentioned.  This  emanated  from  the  body  of  the  peo- 
ple— the  source  of  all  our  laws — that  Avith  which  we  are  all  identi- 
fied. It  has  been  our  misfortune  to  see  a  state  of  feeling  growing 
out  of  sectarian  prejudices,  very  honest  in  themselves,  opposed  to 
this  salutary  principle  of  the  constitution.  Those  who  have  these 
feelings  are  right  to  act  according  to  their  own  conviction,  and  to 
endeavor  to  obtain  an  alteration.  But  considering  that  the  great 
body  of  the  people  were  Congregationalists,  was  it  to  be  asked  that 
they  should  give  up  what  they  considered  an  important  principle  ? 
He  thought  the  opposition  had  come  not  from  the  great  body  of  the 
people,  but  from  a  portion  adverse  in  point  of  principle  to  the  senti- 
ments of  the  great  body. 

Mr.  Nichols  of  South  Reading  was  surprised  at  the  course  the 
discussion  had  taken.  He  should  think  that  the  question  was 
whether  religious  worship  should  hereafter  ever  be  supported.  It 
was  not  so.  He  had  looked  at  the  proposition  of  the  gentleman 
from  Pittsfield,  and  he  did  not  see  that  it  departed  in  any  degree  from 
the  law  of  1811.  He  was  satisfied  with  that  law.  It  was  an  honor 
to  the  Legislature  that  passed  it.  He  had  seen  no  injury  from  that 
law. 

Mr.  Savage  of  Boston  rose  only  in  consequence  of  the  remarks  of 
the  gentleman  who  last  spoke.  He  was  in  the  Legislature  when  the 
law  of  1811  passed;  he  opposed  the  passing  of  that  law  with  all  his 
might.  But  the  evils  which  he  apprehended  from  it  had  not  hap- 
pened.    That  law  had  given  perfect  satisfaction.     The  inconven- 


392  MASSACHUSETTS     CONVENTION. 

iences  which  gentlemen  have  complained  of  must  have  taken  place 
before  the  passing  of  that  law.  It  was  because  he  was  satisfied  with 
the  law  of  1811  that  he  was  decidedly  opposed  to  the  proposition 
of  the  gentleman  from  Pittsfield.  That  law  provided  that  every 
person  shall  be  classed  with  some  religious  society.  But  the  propo- 
sition from  the  gentleman  from  Pittsfield  is  directly  the  contrary. 
It  declares  that  no  person  shall  be  classed.  He  was  aware  it  provided 
that  persons  who  were  now  classed  should  continue  until,  &c.  But 
it  was  provided  for  the  present  time  only.  He  was  willing  that 
every  one  should  have  a  right  to  declare  what  society  he  would  be- 
long to,  but  every  man,  so  long  as  he  lives  in  civil  society,  ought  to 
contribute  to  the  support  of  that  religion  which  is  at  the  foundation 
of  that  society.  Gentlemen  referred  to  the  establishment  of  schools. 
It  was  not  until  after  the  establishment  of  religious  worship,  that 
common  schools  were  established  in  this  country.  It  was  not  until 
1645,  twenty-five  years  after  the  settlement  of  the  country,  that 
town  schools  were  established  even  in  the  largest  towns.  The 
common  schools  are  the  children  of  religion,  and  religion  not  the 
child  of  town  schools.  He  hoped  that  the  children  would  never 
succeed  to  destroy  their  mother. 

Mr.  Bannister  of  Newburyport  said  the  opposition  to  retaining 
the  third  article  rested  on  two  grounds,  one  in  relation  to  the  right, 
the  other  to  the  expediency.  And  with  respect  to  the  expediency, 
it  was  urged  in  the  first  place,  that  inconveniences  arose  out  of  the 
present  system,  and  in  the  next  that  religion  would  flourish  better 
without  the  interference  of  the  civil  authority.  What  were  these 
inconveniences  ?  Before  a  good  system,  accompanied  with  some 
inconveniences,  was  exchanged  for  another,  it  ought  to  be  shown 
that  the  inconveniences  outweighed  the  general  good  resulting  from 
it.  There  were  cases  of  hardships  under  the  present  system,  as  had 
been  mentioned  by  gentlemen,  but  they  were  single  cases,  and  what 
was  the  character  of  them  ?  They  discovered  a  spirit  of  opposition 
to  the  general  good — of  selfishness — to  call  it  by  the  gentlest  name, 
of  too  great  tenaciousness  of  strict  rights.  This  objection  had  been 
fully  answered  by  the  gentleman  from  Boston  (Mr.  Dutton.)  All 
general  rules  are  liable  to  exceptions. 

We  should  consider  how  extensively  the  general  principle  ope- 
rated, and  how  few  were  the  particular  cases  opposed  to  it.  A 
hundred  thousand  polls  were  taxed  for  the  support  of  public  worship. 
Was  there  any  comparison  to  be  made  between  the  good  derived 
from  this  payment  of  taxes,  and  the  cases  of  individual  hardship 
which  had  taken  place  ?  Gentlemen  had  said  that  religion  would 
flourish  better  without  the  present  provision  of  the  constitution. 
This  was  taking  for  granted  a  thing  that  remained  to  be  proved. 
Such  an  assertion  was  not  a  sufficient  reason  for  overturning  a  long 
established  system.  And  from  whom  did  this  argument  come  ? 
From  gentlemen  who  say  they  want  no  aid  from  the  civil  govern- 
ment, because  they  can  get  along  without  it.  If  that  is  the  case, 
why  then  do  they  who  are  so  well  off  and  who  are  in  a  minority. 


MASSACHUSETTS    CONVENTION.  393 

why  do  they  trouble  themselves  so  much  about  the  interest  of  the 
majority  ?  Perhaps  they  feel  kind  towards  the  other  part  of  the 
community  ?  be  it  so  ;  but  they  say  this  article  is  to  build  up  an 
exclusive  sect.  And  this  from  the  mouths  of  those  who  admit  no 
one  of  another  sect  to  their  communion.  But  if  these  gentlemen 
are  able  to  get  a  sufficient  support,  it  is  not  so  with  all  ;  and  they 
have  succeeded  because  religion  generally  is  so  well  supported  in 
this  State  ;  as  was  shown  by  the  gentleman  from  Salem,  (Mr.  Sal- 
tonstall)  who  referred  to  the  condition  of  religion  in  other  states. 
But  grant  all  that  belongs  to  their  argument  ;  it  is  begging  us  to 
give  up  the  fruits  of  an  experiment  of  forty,  yes  of  two  hundred 
years,  with  all  its  known  consequences,  for  an  experiment  of  a  day  ; 
and  that  made  by  a  small  sect.  As  the  gentleman  from  Boston  (Mr. 
Freeman)  said,  let  other  states  try  their  experiments  ;  we  are  going 
on  very  well.  If  they  do  better,  we  can  then  imitate  their  example. 
He  thought  sufficient  had  been  already  said  to  establish  the  right. 
He  thought  the  doubts  on  this  question  arose  from  gentlemen's 
considering  it  too  abstractedly.  They  talked  of  inalienable  rights 
and  rights  of  conscience.  What  do  they  mean  by  rights  of  con- 
science ?  They  were  so  conscientious  they  could  not  take  an  oath. 
What  next  ?  They  have  scruples  about  bearing  arms.  One  gen- 
tleman, to  be  sure,  says  they  are  willing  to  pay  an  equivalent  to  be 
applied  to  the  support  of  the  poor.  Next  day  they  will  have  scru- 
ples about  paying  this  equivalent — they  will  have  scruples  about 
serving  as  jurymen.  At  this  rate  what  shall  we  come  to  ?  Gen- 
tlemen reason  very  impracticably  if  not  absurdly.  We  must 
do  with  religion  as  we  do  with  other  principles.  We  must  make 
it  useful  to  the  common  good.  Our  happiness  and  the  secu- 
rity of  society  are  dependent  upon  it.  Some  gentlemen  say  leave 
religion  to  heaven  ;  but  they  do  not  go  so  far  as  to  say  that  they 
will  not  permit  the  civil  power  to  interfere  for  the  purpose  of  enforc- 
ing their  contracts.  It  is  asked  whether  we  injure  religion  by 
adopting  this  resolution.  He  thought  it  would  be  laying  the  axe  to 
the  root  of  the  tree.  He  did  not  attribute  wrong  motives  to  the 
gentlemen  who  supported  it,  but  this  would  be  the  effect.  What 
would  become  of  our  common  schools  if  left  to  voluntary  contribu- 
tions ?  of  all  our  other  institutions  ?  He  contended  that  they  as 
well  as  religion  would  all  sink  if  not  sustained  by  the  arm  of  civil 
government.  He  felt,  as  the  gentleman  from  Salem  did,  that  we 
had  received  a  legacy  which  we  owed  it  to  our  ancestors,  to  our 
posterity  and  to  ourselves  to  transmit  unimpaired. 

The  question  Avas  then  taken  on  the  adoption  of  the  resolution 
offered  by  Mr.  Childs  and  determined  in  the  negative — 161  to 
221. 

The  committee  then  voted  to  rise — 217  to  45 — reported  progress 
and  had  leave  to  sit  again. 

The  House  then  adjourned. 
50 


394  MASSACHUSETTS    CONVENTION. 

Saturday,  December  23. 
The  Convention  met,  and,  after  the  reading  of  the  journal,  pro- 
ceeded to    the  second  reading   of  the  resolutions  reported   by  the 
select  committee,  on  that  part  of  the   constitution  which  relates  to 
the  governor,  militia,  &c. 

The  resolution  providing  that  the  governor  and  council  shall  ap- 
point notaries  public,  was  amended,  on  motion  of  Mr.  Varnum,  by- 
inserting  the  words,  "who  shall  hold  their  offices  for  seven  years, 
unless  sooner  removed  by  the  governor  and  council,  upon  the  ad- 
dress of  both  houses  of  the  Legislature,"  and,  so  amended,  it 
passed.  All  the  other  resolutions  were  severally  read,  and  passed 
without  amendment. 

Third  article  of  Bill  of  Rights. — On  motion  of  Mr.  Moses  Por- 
ter of  Hadley  the  Convention  then  went  into  committee  of  the 
whole  on  the  unfinished  business  of  yesterday,  it  being  the  report 
of  the  select  committee  on  the  declaration  of  rights. 

The  third  resolution  being  stated  to  be  under  consideration — 
Mr.  Newhall  of  Lynnfield  hoped  the  resolution  would  not  pass. 
He  was  sorry  to  differ  from  the  committee,  and  nothing  but  a  sense 
of  duty  would  have   induced  him  to  rise  on  the  occasion.     It  was 
necessary  that  there  should  be  provision  in  the  constitution  for  the 
support  of  religious  worship,  and  the  maintenance  of  the  teachers 
of  religion.     The  provision  made  by  this  resolution  was  not  suffi- 
cient for  the  purpose.     It  provided  that  towns  and  parishes  should 
levy  taxes  for  the  purpose,  but  at  the  same  time  provided  the  man- 
ner in  which  any  person  who   chose   it  could  exonerate   himself 
from  the  payment  of  these  taxes.     He  has  only  to  call  on  the  com- 
mittee of  some  other  denomination,  or  of  some  other  society  of  the 
same  order,  and  pay  the  trifling  sum  that  they  may  demand — and  it 
is  well  known  that  there  are  religious  teachers  in  almost  all  parts  of 
our  State,  who  do  not  ask  much  for  preaching,  and  who,  of  course, 
will  furnish  a  pass  for  a  very  small  sum — and  those  who  think  the 
acquisition  and  preservation  of  property  to  be  the  most   important 
object  of  life,  will  adopt  this  mode,  and  think  it  a  valuable  saving. 
He  had  no  objection  to  paying  his  proportion  of  the  necessary  taxes 
for  the  support  of  the  ministry,  on  the  principle  that  it  was  for  the 
public  benefit — but  he  saw  no  reason  why  he  should  do  more.    The 
practical  operation  of  this  article  of  the  constitution  had  been  very 
unequal,  by  restricting  persons  from  going  to  another  society  of  the 
same  order  with  that  in  which  they  happen  to  reside.     This  report 
proposes  a  remedy,  by  permitting   persons  to  remove  their  connec- . 
tions  from   one  religious  society  to  another.     But  there  was  a  very 
strong  objection  to  it,  for  any  persons  could  easily  evade   the  obli- 
gation to  contribute  their  proportion.     It  is   proposed,  that  when 
any  number  of  persons,  not  less  than  twenty,  shall  have  associated 
for  the  purpose   of  maintaining  public  worship,  they  shall  not  be 
liable  to  be  taxed  for  the  purpose  elsewhere.     Twenty  persons  thus 
associated,  who  may  be  at  the  expense  of  four   or  five  dollar  ser- 
mons per  year,  which  would  be  a  tax  of  one  dollar  upon  each  per- 


MASSACHUSETTS    CONVENTION.  395 

son,  will  thus  be  excused  from  all  other  taxes  for  the  support  of 
public  worship.  The  tax  upon  these  twenty  persons,  in  the  parish 
to  which  they  belong,  may  amount  to  half  or  two  thirds  of  the 
whole  tax  of  the  parish  for  the  regular  support  of  a  public  teacher, 
and  their  withdrawing  may  leave  the  town  destitute  of  the  means 
of  regularly  supporting  public  worship.  Now  if  these  twenty  per- 
sons were  holden  to  pay  their  proportion  of  the  sums  necessary  for 
the  support  of  public  worship,  in  such  manner  that  it  should  be  ac- 
tually expended  for  that  purpose,  by  being  paid  over  to  some  pub- 
lic teacher,  if  not  to  the  minister  of  the  parish,  public  worship 
would  be  maintained  in  some  form  or  other.  If  this  article  could 
be  so  amended,  as  effectually  to  draw  from  the  community  such 
sums  as  would  be  competent  to  remunerate  religious  teachers  for 
devoting  their  time,  talents  and  learning  to  the  work  of  the  minis- 
try, by  an  equal  tax  upon  all  the  ratable  polls  and  property  in  the 
several  towns  in  the  Commonwealth,  he  (Mr.  Newhall)  would  not 
raise  his  voice  or  hand  against  it  ;  and  he  should  have  no  objection, 
that  after  the  taxes  should  have  been  paid  into  the  town  treasuries, 
every  person  should  have  a  right  to  draw  out  the  sum  paid  by  him, 
to  be  paid  over  to  the  teacher  of  any  religious  denomination  what- 
ever. He  wished  to  see  nothing  in  the  constitution  that  looked 
like  giving  any  exclusive  privilege,  or  showing  any  partiality  to 
any  one  denomination.  He  concluded  by  offering  as  a  substitute 
for  the  third  and  fourth  resolutions  of  the  select  committee,  a  prop- 
osition so  to  amend  the  constitution,  that  towns,  parishes,  &c, 
shall  have  power  to  make  provision  for  the  support  of  public  wor- 
ship, by  levying  taxes  for  the  purpose  upon  polls  and  estates  within 
their  jurisdiction — that  every  person  so  taxed,  shall  have  power  to 
designate  the  religious  teacher  to  whose  benefit  the  amount  of  his 
tax  shall  be  appropriated,  provided  there  is  any  one  whose  instruc- 
tion he  usually  attends — and  that  the  taxes  of  those  who  do  not 
attend  on  the  religious  instructions  of  any  one,  shall  be  appropriated 
to  the  use  of  the  schools  in  the  town  or  society. 

Mr.  Q,uincy  wished  the  mover  to  state  the  precise  object  of  his 
motion,  and  to  point  out  the  difference  between  the  provisions  of 
his  resolution,  and  those  of  the  third  article  of  the  declaration  of 
rights. 

Mr.  Newhall  said  it  was  not  essentially  different  from  the  third 
article.  It  would  remove  an  objection  which  some  men  make  to 
paying  taxes  for  the  support  of  religious  teachers,  that  they  go  to 
hirelings,  and  to  support  heresy.  All  agreed  in  the  propriety  of 
supporting  schools.  He  saw  no  reason  why  all  should  not  pay 
equally  for  the  support  of  religion,  because  it  was  necessary  for 
society  and  the  preservation  of  government. 

Mr.  Quincy  said  the  proposition  struck  him  agreeably  enough, 
except  the  last  part  of  it.  He  did  not  see  why  the  taxes  paid  by 
those  who  do  not  attend  public  worship,  should  not  be  applied  to 
the  support  of  religion,  just  as  much  as  that  the  taxes  paid  by  bach- 
elors should  go  to  the  support  of  schools. 


396  MASSACHUSETTS     CONVENTION. 

Mr.  Nichols  of  South  Reading  said,  that  in  a  town  where  there 
was  a  settled  Congregational  minister,  and  the  dissenters  from  that 
religion  were  a  majority,  and  of  a  sect  which  was  opposed  to  sup- 
porting public  worship,  except  by  voluntary  contributions,  if  the 
dissenters  were  not  allowed  to  vote,  the  minority  might  say  what 
sum  should  be  raised;  and  if  they  were  allowed  to  vote,  no  sum 
would  be  raised.  The  settled  minister  would  then  lose  his  sal- 
ary. 

Mr.  Baldwin  opposed  the  amendment.  He  said  that  if  all  the 
denominations  in  a  town  should  assemble  and  vote  to  raise  a  cer- 
tain sum  for  the  support  of  the  settled  minister,  and  then  each  of  the 
other  denominations  should  draw  out  from  the  sum  raised,  what  be- 
longed to  each  of  them,  there  might  be  too  much,  or  there  might 
be  too  little,  left  for  the  settled  minister.  He  did  not  see  the  pro- 
priety or  expediency  of  one  denomination  assessing  taxes  for 
another,  and  thought  that  every  society  had  better  manage  its  own 
concerns. 

The  question  was  taken  upon  the  amendment,  and  determined  in 
the  negative. 

The  question  recurred  upon  the  third  resolution. 
Mr.  Baldwin  moved  to  strike  out  shall,  and  insert  may — so  as  to 
read,  that  the  Legislature  may  from  time  to  time  require  towns,  &c. 
to  make  suitable  provision,  at  their  own  expense,  for  the  support  of 
public  worship.  Mr.  B.  said  there  was  not  a  town  anywhere, 
where  provision  was  not  made.  There  was,  therefore,  no  necessity 
for  saying  that  the  Legislature  shall  require,  &c.  It  ought  to  be 
left  to  the  discretion  of  the  Legislature,  so  that  if  they  see  a  town 
neglecting  to  support  public  worship,  they  may  then  interfere  if 
they  see  fit. 

Mr.  Foster  of  Littleton  hoped  the  amendment  would  not  pre- 
vail. Some  gentlemen  would  say  that  shall  and  may  mean  the  same 
thing  ;  if  so,  then  let  shall  remain.  If  they  substituted  may,  the 
Legislature  might  make  it  an  apology  in  all  cases  for  neglecting 
their  duty. 

Mr.  Sullivan  of  Boston  asked  if  the  word  shall  had  not  been  in 
our  constitution  forty  years,  and  if  all  our  institutions  for  public 
worship  had  not  grown  and  nourished  under  it  ?  if  so,  why  should 
it  be  changed? 

Mr.  Bliss  of  Springfield  said  that  if  gentlemen  were  satisfied 
that  provision  will  always  be  made  voluntarily,  they  need  have  no 
fears  of  the  interference  of  the  Legislature  ;  for  if  they  would  at- 
tend to  the  connection  of  the  sentence,  they  would  perceive  that  it 
is  only  in  cases  where  provision  is  not  made  voluntarily,  that  the 
Legislature  shall  require  it  to  be  made.  It  was  the  general  senti- 
ment of  the  select  committee,  and  he  presumed  of  the  present  com- 
mittee, that  public  worship  ought  to  be  supported.  Our  institutions 
for  that  purpose  had  been  owing  to  this  word  shall.  Because  there 
had  been  no  gross  violation  of  the  law,  should  we  say  the  law 
was  unnecessary?      We   ought   rather  to   say  the    law   had  been 


MASSACHUSETTS    CONVENTION.  397 

obeyed.  It  did  not  follow  that  the  law  was  bad,  because  there  had 
been  no  gross  violation  of  it ;  the  object  of  laws  was  to  prevent 
wrong,  not  to  punish  it.  The  silent  influence  of  laws  was  a  thou- 
sand times  more  beneficial  than  the  actual  enforcement  of  obe- 
dience to  them.  It  was  impossible  to  foresee  the  operation  of  the 
change  proposed.  If  we  struck  out  the  word  shall,  it  would 
amount  to  saying  that  we  had  not  been  a  happy  and  virtuous  peo- 
ple. If  it  was  true  that  the  happiness  of  society  depended  upon 
the  diffusion  of  religion  and  morality  ;  and  if  the  institution  of  pub- 
lic worship,  and  of  public  instructions  in  religion  and  morality,  was 
the  only  means  of  diffusing  them,  it  would  be  improper  to  leave  it 
to  the  discretion  of  the  Legislature  to  see  that  suitable  provision 
was  made  for  effecting  the  object. 

Mr.  Hubbard  of  Boston  said  this  was  in  his  view  a  very  impor- 
tant question.  He  was  in  favor  of  substituting  may  for  shall.  He 
was  clearly  of  opinion  that  the  community  had  a  right  to  make 
laws  on  the  subject  of  public  worship,  on  this  principle,  that  what 
it  is  the  duty  of  the  citizen  to  perform,  it  is  proper  for  the  Legisla- 
ture to  compel  him  to  perform.  But  he  preferred  the  word  may, 
because  the  community  have  no  power,  no  tribunal,  to  compel  the 
Legislature  to  do  a  particular  act.  If  the  Legislature  should  do  an 
act  which  it  had  no  right  to  do,  then  there  was  a  remedy,  because 
the  supreme  court  would  determine  it  to  be  unconstitutional.  The 
constitution  Avould  have  just  as  much  force,  if  it  were  left  to  the 
conscience  of  the  Legislature  to  make  provision  for  the  support  of 
public  worship.  The  committee  had  already  agreed  to  leave  out 
the  clause  in  the  third  article  which  says,  "  the  Legislature  shall 
enjoin  attendance  on  public  worship."  The  Legislature  never 
carried  it  into  effect  and  there  was  no  power  to  compel  them. 

Mr.  Locke  of  Billerica  interrupted  the  gentleman,  to  mention 
that  the  constitution  does  not  say  that  the  Legislature  shall  enjoin 
attendance,  &c,  but  that  the  people  invest  them  with  authority  to 
enjoin.  &c. 

Mr.  Hubbard  said  there  was  the  same  moral  obligation  on  the 
Legislature  to  enjoin  attendance  upon  public  worship  as  there  was 
to  require  suitable  provisions  to  be  made  for  the  support  of  public 
worship.  He  denied  that  our  happiness  and  good  morals  were 
owing  to  the  third  article  ;  on  the  contrary,  that  article  grew  out  of 
our  good  morals.  New  Hampshire  had  omitted  it  in  her  constitu- 
tion— Connecticut  and  Rhode  Island  had  no  such  provision  ;  and  if 
we  were  making  a  new  constitution,  we  should  leave  it  out,  if  the 
popular  sentiment  was  against  it.  No  law  was  passed  until  1800  to 
enforce  this  provision ;  so  that  it  remained  for  twenty  years  a  dead 
letter,  and  we  were  living  under  the  operation  of  former  laAvs  on 
this  subject.  He  said  there  was  nothing  imperative  in  the  word 
shall,  where  the  constitution  says  it  shall  be  the  duty  of  the  Legis- 
lature to  cherish  public  schools ;  because  the  same  phraseology  is 
used  with  respect  to  their  countenancing  sincerity,  good  humor  and 
the  social  affections.     He  repeated  his  objection  to  commanding  the 


398  MASSACHUSETTS     CONVENTION. 

Legislature,  when  there  is  no  power  to  enforce  the  command. 
Shall  meant  the  same  as  may,  and  we  might  safely  trust  to  the  Leg- 
islature to  do  what  was  proper. 

Mr.  Parker  of  Boston  said  there  was  an  inconsistency  in  his  col- 
league in  saying  that  shall  and  may  meant  the  same  thing  and  yet 
wanting  one  to  be  substituted  for  the  other  in  the  constitution. 
His  Rev.  colleague  (Mr.  Baldwin,)  did  not  understand  them  to  mean 
the  same  thing,  or  he  would  not  have  moved  the  amendment.  Mr. 
H.  had  objected  to  shall,  because  there  was  no  power  to  coerce  the 
Legislature.  Mr.  P.  said  there  was  hardly  a  page  in  the  constitu- 
tion, in  which  similar  phraseology  did  not  occur  ;  and  he  under- 
stood it  as  an  expression  of  the  will  of  the  people  to  which  the  Leg- 
islature were  bound  to  conform  ;  and  although  there  was  no  tribunal 
to  coerce  them,  the  people  had.  it  in  their  power  to  choose  other 
legislators.  He  said  if  the  word  shall  should  be  struck  out,  the 
next  Legislature  would  have  their  feelings,  and  would  repeal  all 
the  laws  for  the  support  of  public  worship.  Mr.  H.  had  said  our 
institutions  for  the  support  of  religion  were  not  owing  to  this  ar- 
ticle. He  had  no  authority  for  the  assertion.  This  article  had 
been  a  long  time  an  important  principle  in  our  constitution,  and 
it  was  impossible  to  say  what  effects  were  owing  to  its  operation. 

Mr.  Tilden  of  Hanson  thought  the  amendment  too  trivial  to  oc- 
cupy the  time  of  the  committee. 

Mr.  Tillinghast  of  Wrentham  spoke  in  favor  of  the  amendment. 

Mr.  Hoar  of  Concord  said  the  gentleman  from  Boston,  (Mr. 
Hubbard,)  had  said  that  if  shall  was  peremptory,  it  would  be  of  no 
avail,  as  there  was  no  power  to  coerce  the  Legislature  and  that  we 
might  trust  to  the  conscience  of  the  Legislature.  As  the  legisla- 
tors were  required  to  take  an  oath  to  support  the  constitution,  on 
the  gentleman's  own  ground  their  conscience  would  not  permit  them 
to  violate  this  oath,  and  therefore  the  word  shall  would  have  some 
validity. 

The  amendment  was  negatived — 151  to  203. 

Mr.  Williams  of  Beverly  said  he  had  advocated  the  proposition 
offered  by  the  gentleman  from  Pittsfield.  Difficulties  had  arisen 
under  the  third  article.  With  a  view  to  unite  the  views  of  the 
committee,  and  of  their  constituents  at  large,  he  had  prepared  a  res- 
olution which  he  would  offer  as  a  substitute  for  the  third  and  fourth 
resolutions  of  the  select  committee.  Mr.  W's  resolution  contained 
the  third  resolution  of  the  select  committee,  except  that  do  invest 
was  substituted  for  have  a  right  to  invest ;  and  instead  of  the  fourth, 
it  proposed  that  every  religious  society,  incorporated  or  unincorpo- 
rated, should  have  power  to  raise  money  for  the  purposes  of  the 
society,  in  such  manner  as  they  should  choose, — that  every  person 
should  be  at  liberty  to  unite  himself  to  such  society  as  he  pleased, 
and  the  moneys  paid  by  him  should  go  to  the  support  of  the  teacher 
of  such  society ;  and  that  every  person  who  did  not  class  himself 
voluntarily  with  any  society,  should  be  classed  with  the  town, 
parish  or  precinct  in  which  he  lived,  and  be  taxed  for  the  support  of 


MASSACHUSETTS    CONVENTION.  399 

public  worship  in  such  town,  parish  or  precinct.  Mr.  W.  said  his 
object  was  to  allow  freedom  to  every  person  to  worship  where  he 
pleased,  and  to  permit  societies  which  prefer  supporting  their  teachers 
by  subscription,  to  adopt  that  mode  instead  of  taxation. 

Mr.  Thorndike  of  Boston  opposed  the  resolution,  and  alluded  to 
local  transactions  in  the  town  of  Beverly. 

Mr.  Low  of  Beverly,  in  answer  to  Mr.  Thorndike,  went  into  a 
detail  of  some  individual  cases  of  hardship  in  that  town. 

Mr.  Ware  of  Boston  had  no  doubt  of  the  right  of  the  community 
to  make  laws  on  the  present  subject,  and  as  far  as  he  understood 
the  proposition  of  the  gentleman  from  Beverly,  he  did  not  perceive 
that  it  was  objectionable. 

Mr.  CIuincy  objected  to  the  form  in  which  the  amendment  was 
brought  forward.  Here  was  a  long  proposition  differing  only  in  a 
sentence  or  two  from  the  resolutions  of  the  select  committee.  It 
was  difficult  in  this  mode  to  see  in  what  the  difference  consisted. 
Small  amendments  should  be  proposed  in  those  parts  of  the  resolu- 
tions where  gentlemen  wanted  an  alteration  ;  this  was  one  object  in 
having  the  resolutions  printed. 

Mr.  Williams  replied  that  he  adopted  this  mode  for  the  sake  of 
making  the  proposition  simple.  The  mode  of  striking  out  and  in- 
serting, was  apt  to  cause  confusion. 

Mr.  D.  Davis  of  Boston  thought  that  no  gentleman  could  have  a 
clear  and  precise  idea  of  the  effect  of  the  proposition  before  the  com- 
mittee until  it  should  be  printed,  that  they  might  have  an  opportu- 
nity of  comparing  it  with  the  present  article  of  the  constitution,  with 
the  act  of  1811,  and  with  the  report  of  the  committee.  It  was  a 
proposition  to  remedy  all  the  evils  complained  of  under  the  present 
constitution,  and  had  never  seen  the  light  until  within  a  few  min- 
utes. They  ought  not  to  be  driven  to  vote  on  a  proposition  which 
they  had  no  better  opportunity  to  understand.  He  therefore  moved 
that  the  committee  rise. 

The  motion  was  negatived. 

Mr.  Wilde  thought  that  there  was  nothing  in  the  resolution  be- 
fore the  committee  materially  different  from  the  third  resolution  of 
the  select  committee,  and  that  the  mover  would  better  obtain  his 
object,  if  instead  of  making  his  proposition  a  substitute  for  both  res- 
olutions, he  would  so  modify  it  as  to  make  it  a  substitute  for  the 
fourth  only.  Accepting  the  third  resolution  would  be  only  affirm- 
ing the  vote  of  last  evening.  All  the  difference  between  it  and  the 
third  article  appeared  to  be  that  it  put  incorporated  and  unincorpo- 
rated societies  on  the  same  footing. 

Mr.  Williams  then  withdrew  his  resolution  reserving  the  right  to 
move  that  part  of  it  which  proposed  the  principal  alteration  as  an 
amendment  to  the  fourth  resolution,  when  that  should  come  under 
consideration. 

Mr.  Jackson  of  Boston  thought  the  time  had  now  arrived  when 
the  amendment  proposed  by  Mr.  Saltonstall  could  be  conveniently 
considered.     It  had  been  determined  not  to  reject  the  general  prin- 


400  MASSACHUSETTS    CONVENTION. 

ciple  contained  in  the  third  article.  He  should  be  glad  to  adopt 
the  amendments  proposed.  He  would  not  let  a  non-resident  with- 
draw the  tax  on  his  lands,  for  the  same  reason  that  taxes  for  schools 
and  highways  should  not  be  withdrawn.  It  was  for  the  interest  of 
the  persons  owning  lands,  that  public  worship  should  be  supported. 
He  wished  also  another  amendment,  that  should  allow  all  persons 
to  withdraw  their  support  from  the  parish  in  which  they  reside,  in 
favor  of  another  society  in  which  they  may  prefer  to  attend  worship, 
though  of  the  same  denomination.  But  he  was  not  so  strenuous 
for  either  as  to  urge  them  so  as  to  endanger  the  whole  article.  He 
wished  however  that  the  sense  of  the  Convention  might  be  taken 
on  these  amendments. 

Mr.  Saltonstall  then  moved  to  amend  by  substituting  for  the 
third  and  fourth  resolutions  of  the  select  committee,  a  resolution  im- 
porting that  it  is  not  expedient  further  to  amend  the  third  article  of 
the  declaration  of  rights,  than  by  providing  that  the  taxes  raised 
upon  the  real  estate  of  non-resident  proprietors,  shall  be  applied 
towards  the  support  of  public  worship  in  the  town,  precinct  or  parish 
in  which  such  real  estate  shall  be  situated,  and  also  to  provide  that 
the  word   "  Christian  "  shall  be  substituted  for   "  protestant." 

Mr.  Sullivan  of  Brookline  wished  it  to  be  understood  that  it  had 
been  decided  by  the  highest  judicial  tribunal,  that  the  law  of  1811 
was  not  repugnant  to  the  constitution. 

Mr.  Bliss  of  Springfield  would  be  in  favor  of  the  resolution  with 
one  alteration,  but  as  it  was,  must  oppose  it.  If  it  were  a  new  sub- 
ject he  should  presume  that  the  supreme  court  would  give  such 
a  construction  to  the  constitution,  that  he  should  be  satisfied  with 
it  without  alteration.  But  that  court  many  years  ago,  composed 
then  of  persons  who  were  all  members  of  the  convention  which 
formed  the  constitution,  decided  that  persons  must  be  of  a  different 
denomination  from  the  parish  in  which  they  were  situated,  to  entitle 
them  to  withdraw  their  taxes  for  the  support  of  public  worship  in 
another  society  to  which  they  might  choose  to  unite  themselves. 
He  could  not  see  in  the  constitution  the  grounds  of  this  decision, 
but  he  must  presume  that  it  was  construed  rightly.  There  was  a 
great  variety  of  opinions  among  persons  of  the  same  denomination 
which  made  it  impossible  for  them  to  worship  together  with  pro- 
priety. If  the  gentleman  from  Salem  would  provide  a  further 
amendment  that  should  remove  the  difficulty  alluded  to,  he  would 
agree  to  it.  He  proceeded  to  make  some  remarks  on  the  report  of 
the  select  committee. 

Mr.  Jackson  moved  to  amend  the  resolution  so  that  it  should  read 
in  substance  as  follows  :  that  it  is  not  expedient  further  to  alter  and 
amend  the  third  article,  except  to  provide  that  all  moneys  paid  by 
the  subject  for  the  support  of  public  worship  and  of  the  public 
teachers  of  piety,  religion  and  morality,  be  applied  to  the  public 
teacher  or  teachers,  if  there  be  any  one  whose  instructions  he  at- 
tends, whether  of  the  same  or  of  a  different  sect  or  denomination 
from  that  of  the  sect  in  which  the  money  is  raised  ;  provided,  how- 


MASSACHUSETTS     CONVENTION.  401 

ever,  that  taxes  raised  on  the  real  estate  of  non-resident  proprietors 
shall  be  applied  towards  the  support  of  public  worship  in  the  town, 
precinct  or  parish  in  which  real  estate  shall  be  situated ;  and  also  to 
provide  that  the  word  "  Christian  "  shall  be  substituted  for  the  word 
"  protestant." 

Mr.  Whittemore  of  West  Cambridge  said  this  was  the  most  in- 
tolerant proposition  ever  offered.  A  person  might  reside  in  a  town 
where  there  was  a  Congregational  society,  and  belong  to  a  Baptist 
society  in  the  next  town.  There  were  many  instances  of  this  kind. 
Was  it  right,  was  it  just,  that  a  man  should  pay  a  tax  for  every  cent 
of  property  he  has,  to  support  a  church  he  does  not  attend,  and  a 
kind  of  doctrine  he  does  not  believe  ?  This  was  tyranny  in  the  first 
degree. 

Mr.  Parker  said  the  gentleman  mistook  the  proposition.  It  em- 
braced only  the  estate  of  a  non-resident  proprietor. 

Mr.  Tillinghast  of  Wrentham  said  all  his  estate  might  be  in  the 
next  town  to  that  in  which  he  resided,  and  he  might  belong  to  a 
Baptist  society  in  which  they  did  not  levy  taxes.  His  whole  prop- 
erty would  then  be  taxed  to  support  a  religion  which  he  did  not 
wish  to  support,  and  he  would  be  deprived  of  the  means  to  support 
his  own  religion.  He  hoped  the  proposition  would  not  be  ratified  ; 
it  would  be  an  act  of  tyranny. 

Mr.  Quincy  said  that  the  question  before  the  committee  was  the 
amendment  offered  by  his  colleague  (Mr.  Jackson.)  The  gentle- 
man's remarks  applied  to  the  original  proposition. 

Mr.  Williams  said  he  found  himself  in  a  dilemma  he  did  not  ex- 
pect. He  had  intended  to  withdraw  only  the  first  part  of  his  reso- 
lution, intending  to  reserve  the  other  part  of  it  as  an  amendment  to 
the  fourth  resolution. 

Mr.  GIuincy  said  that  the  gentleman  was  not  precluded.  He  had 
had  the  opportunity  to  explain  all  his  views,  and  if  the  committee 
approved  his  plan  they  would  not  vote  for  the  substitute  proposed 
by  the  gentleman  from  Salem,  and  he  would  have  an  opportunity 
to  move  his  amendment  in  the  proper  time. 

Mr.  Doane  of  Phillipston  said  if  he  understood  the  amendment,  it  ' 
gave  to  a  subject,  residing  further  from  his  own  meeting  house  than 
from  that  of  an  adjoining  parish,  the  right  to  withdraw,  for  that  rea- 
son or  for  any  other  personal  convenience,  and  to  take  with  him  the 
taxes  paid  by  him  to  an  adjoining  parish,  though  it  might  leave  his 
own  parish  unable  to  pay  their  minister.  If  this  was  to  be  the  op- 
eration of  it,  which  he  believed  would  be,  it  would  leave  many  small 
parishes  entirely  unable  to  support  public  worship. 

Mr.  Foster  thought  this  proposition  was  liable  to  the  same  objec- 
tion with  the  report  of  the  select  committee.  The  situation  of  the 
different  religious  societies  was  extremely  various.  Y\  e  might  as 
well  attempt  to  make  a  garment  that  would  suit  all  sizes  and  shapes, 
as  to  make  a  regulation  that  would  suit  the  condition  of  all  religious 
societies.  If  we  agreed  to  the  third  article  with  this  amendment, 
we  should  seem  to  secure  the  object  of  providing  for  the  support  of 
51 


402  MASSACHUSETTS    CONVENTION. 

public  worship,  but  should  defeat  it  by  giving  every  one  leave  to 
give  their  support  where  they  please.  He  was  willing  that  every 
one  should  have  liberty  to  worship  where  he  pleased,  but  his  money 
ought  to  go  to  the  town  or  parish  were  he  lives,  and  where  he  enjoys 
the  benefit  derived  from  public  religious  instruction. 

Mr.  Lincoln  of  Boston  said  he  had  no  personal  interest  in  the 
question,  but  he  had  friends  who  had ;  and  he  asked  if  the  period 
had  not  arrived  when  people  might  be  allowed  to  pay  their  money 
for  the  support  of  the  gospel  where  they  please.  He  hoped  the 
question  would  not  be  taken  without  much  deliberation. 

The  question  was  taken  on  adopting  the  amendment  and  decided 
in  the  affirmative — 185  to  113. 

On  motion  of  Mr.  Foster  the  committee  rose — 188  to  114 — re- 
ported progress  and  had  leave  to  sit  again. 

Messrs.  Hall  of  Medford,  Garfield  of  Tyringham,  Horton  and 
Flower  of  West  Springfield,  Cobb  of  Orange,  Hodges  of  Taunton, 
Mason  of  Swansey,  and  Hyde  of  New  Marlborough  had  leave  of 
absence. 

Mr.  Newhall  of  Lynnfield  moved  that  when  the  Convention  ad- 
journed, they  should  adjourn  to  Tuesday  next,  Monday  being 
Christmas.  Negatived.  And  the  House  adjourned  to  9  o'clock  on 
Monday  morning. 


Monday,  December  25. 

The  Convention  met  at  half  past  9  o'clock.  The  journal  having 
been  read, 

Mr.  Hyde  of  Lenox  gave  notice  that  he  should  tomorrow  move, 
that  when  the  Convention  adjourned,  it  should  adjourn  to  the  second 
Wednesday  of  February  next. 

The  Convention  proceeded  to  the  first  reading  of  the  resolutions 
reported  by  the  select  committee  on  that  part  of  the  constitution 
relating  to  oaths,  subscriptions,  &c. 

The  first  resolution  which  provides  that  certain  oaths  shall  be 
taken  in  lieu  of  the  oaths  and  declarations  heretofore  required  having 
been  read, 

Mr.  Tuckerman  moved  so  to  amend  it  as  to  require  that  any  per- 
son chosen  to  the  office  of  governor,  lieutenant  governor,  or  coun- 
sellor, or  to  a  seat  in  the  senate  or  house  of  representatives,  shall, 
after  accepting  the  office  or  trust,  and  before  entering  on  its  duties, 

make  and  subscribe   the   following  declaration :   "I do 

believe  in  the  truth  of  the  Christian  religion." 

Mr.  Prince  of  Boston  moved  that  the  resolution  and  amendment 
should  lie  on  the  table,  and  be  assigned  for  consideration  tomorrow. 
He  said  that  although  he  was  opposed  to  the  adoption  of  anything 
like  the  amendment  proposed,  and  had  already  expressed  his  views 
fully- to  that  effect,  he  thought  that  gentlemen  ought  to  have  an 
opportunity  to  be  heard  in  support  of  the  amendment.     It  was  now 


MASSACHUSETTS    CONVENTION.  403 

Christmas  day,  the  house  was  in  consequence  extremely  thin,  and 
those  who  felt  particularly  interested  in  support  of  the  amendment 
were  principally  absent.  There  appeared  to  be  a  great  impropriety 
in  taking  advantage  of  the  day,  and  the  absence  of  those  who  con- 
scientiously pay  a  respect  to  it,  to  expunge  from  the  constitution  a 
provision  which  many  of  those  gentlemen  considered  one  of  the 
essential  supports  of  the  Christian  religion. 

The  motion  was  negatived. 

The  question  on  the  amendment  was  then  taken,  and  decided  in 
the  negative,  91  to  126. 

The  question  recurred  on  the  resolution,  and  it  passed  to  a  sec- 
ond reading. 

The  second  resolution,  which  provides  that  judges  of  courts  and 
United  States  officers  shall  not  hold  certain  offices,  &c,  was  then 
read. 

Mr.  Webster  moved  to  amend,  by  adding  after  no  judges  of  any 
courts  of  this  Commonwealth,  the  words  "except  the  courts  of  ses-. 
sions."     The  amendment  was  agreed  to. 

Mr.  Alvord  of  Greenfield  moved  to  amend,  by  adding  after  the 
provision  that  judges  of  courts  of  common  pleas  shall  hold  no  other 
office,  except  that  of  justice  of  the  peace  and  militia  offices — "pro- 
vided, however,  that  this  amendment  shall  not  operate  to  deprive 
any  such  judge  of  any  office  which  he  now  lawfully  holds." 

Mr.  Webster  thought  that  if  the  amendment  should  operate  im- 
mediately upon  any  office  included  in  it,  it  ought  so  to  operate  on  all. 
He  was  against  the  amendment. 

Mr.  Alvord  said  it  was  a  different  question,  whether  a  person 
holding  a  certain  office  should  be  eligible  to  another,  and  whether 
such  person  shall  be  deprived  of  an  office  of  which  he  is  now  law- 
fully invested.  He  could  not  reconcile  it  with  his  notions  of  justice, 
that  persons  who  had  accepted  offices  under  the  constitution,  should 
be  deprived  of  them  by  the  creation  of  an  incompatibility  by  an  al- 
teration of  the  constitution. 

Mr.  Lawrence  of  Groton,  Mr.  Lincoln  of  Worcester,  Mr.  Wil- 
lard  of  Fitchburg,  and  Mr.  Walker  of  Templeton,  spoke  against 
the  amendment. 

The  amendment  was  negatived. 

Mr.  Webster  moved  to  amend,  by  inserting  among  the  persons 
who  shall  be  considered  as  vacating  their  offices  by  accepting  the 
trust  of  member  of  Congress,  after  solicitor  general  the  words 
"  county  attorneys."     The  amendment  was  agreed  to. 

The  second  resolution  then  passed  to  a  second  reading. 

The  third  resolution,  providing  for  future  amendments  of  the 
constitution,  was  then  read. 

Mr.  Phelps  of  Chester  moved  to  amend  by  striking  out  the  words 
"two-thirds,"  the  proportion  of  two  successive  Legislatures  who 
should  be  required  to  vote  in  favor  of  any  specific  amendment,  be- 
fore it  shall  be  submitted  to  the  people  for  their  ratification,  and  in- 
serting "majority." 


404  MASSACHUSETTS    CONVENTION. 

Mr.  Webster  of  Boston  was  decidedly  opposed  to  the  proposi- 
tion. If  adopted,  the  whole  constitution  would  be  constantly  under 
amendment,  and  every  change  of  party  would  effect  an  alteration 
in  the  constitution.  The  provision  that  the  proposed  amendment 
should  be  agreed  to  by  the  Legislatures  of  two  successive  years, 
would  furnish  no  adequate  security.  A  temporary  excitement 
might  influence  both,  for  the  whole  year  might  in  effect  be  but 
from  the  end  of  one  year  to  the  beginning  of  the  next.  He  had 
heard  an  objection  to  requiring  two-thirds  of  both  houses,  from  the 
particular  organization  of  the  senate,  it  being  apprehended  by  some 
persons,  that  certain  districts  might  be  so  associated  as  to  prevent 
any  amendment  from  taking  place.  He  did  not  see  the  weight  of 
the  argument,  but  was  willing  that  the  resolution  should  be  so 
amended  as  to  meet  the  objection.  He  would  rather  have  no 
amendatory  provision,  than  one  by  which  changes  could  be  effected 
too  easily.  With  a  view  to  meet  this  objection  and  to  remove  all 
obstruction  on  this  ground  to  the  adoption  of  the  arrangement  re- 
lating to  the  senate,  he  was  willing  to  amend  the  resolution  so  as 
to  require  only  a  majority  of  the  senate,  but  two-thirds  of  the  pop- 
ular branch. 

Mr.  Phelps  said  that  he  should  be  satisfied  with  this  amend- 
ment, and  therefore  withdrew  his  motion. 

Mr.  Webster  then  moved  to  amend  the  resolution  in  such  a 
manner  as  to  require  a  majority  of  the  senators  and  two-thirds  of 
the  house  of  representatives  present  and  voting  thereon. 

Mr.  Qjjincy  opposed  the  motion.  Our  ancestors,  in  framing  the 
constitution,  provided  for  one  opportunity  only  to  amend  it.  They 
wished  the  constitution  to  be  steady,  and  thought  it  better  to  leave 
us  to  struggle,  and  let  parties  struggle,  under  the  constitution,  than 
to  permit  them  to  triumph  over  it.  If  you  require  the  consent  of 
two-thirds  of  the  senate  to  effect  a  change,  that  body  can  protect 
itself ;  but  under  this  provision,  if  it  should  render  itself  unpopular, 
the  state  of  political  parties  may  be  such  as  to  destroy  the  organiza- 
tion of  the  senate. 

Mr.  Austin  of  Boston  liked  the  proposition  of  the  committee  for 
effecting  amendments.  The  provision  very  properly  required  that 
the  people  should  not  be  put  in  excitement  for  any  party  purpose. 
He  was  sorry  to  hear  the  proposition  for  amendment.  It  was 
against  the  principle  of  the  constitution,  by  destroying  the  equality 
of  the  two  houses. 

Mr.  Webster  said  that  he  felt  obliged  to  make  this  article  con- 
form to  that  relating  to  the  senate,  otherwise  it  would  be  said  when 
we  came  to  the  senate,  that  we  must  make  that  conform  to  this. 
He  wished  to  have  something  finished.  He  was  satisfied  with  the 
resolution  as  it  was,  but  a  general  sentiment  had  been  expressed, 
that  it  ought  not  to  be  in  the  power  of  any  two  districts,  by  com- 
bining, to  defeat  any  proposed  amendment.  It  was  not  a  principle 
of  the  constitution  that  the  two  branches  are  equal.  No  money  bill 
can  originate  in  the  senate.     In  Virginia  all  bills  originate  in  the 


MASSACHUSETTS    CONVENTION.  405 

lower  house.  No  objection  was  made  to  requiring  two-thirds  of 
the  house,  and  he  thought  that  this,  with  a  majority  of  the  senate, 
and  for  two  successive  years,  taking  the  yeas  and  nays,  with  a  pub- 
lication of  the  amendments  proposed,  would  be  a  sufficient  security. 
Mr.  Apthorp  was  unwilling  to  have  alterations  too  easy.  He 
preferred  the  resolution  as  reported. 

Mr.  J.  Phillips  of  Boston  said  he  understood  that  the  proposed 
organization  of  the  senate  and  house  of  representatives,  was  on  the 
ground  of  a  compromise,  in  which  a  larger  proportion  of  power  in 
the  senate  was  given  to  the  seaboard,  to  balance  the  undue  influ- 
ence of  the  inland  parts  of  the  Commonwealth  in  the  other  branch. 
He  would  therefore  propose,  that  in  all  amendments  relating  to  the 
senate,  the  consent  of  two-thirds  of  that  body  should  be  required. 

Mr.  Lincoln  of  Worcester  said  the  whole  power  in  relation 
to  amendments,  might  as  well  be  left  to  the  senate,  as  to  require 
the  consent  of  two-thirds.  If  four-fifths,  or  nine-tenths  of  the 
people  should,  for  two  years,  be  in  favor  of  any  amendment,  unless 
the  senate  consented,  it  would  be  all  in  vain.  One-third  of  the 
senate  might  be  chosen  by  a  little  more  than  one-fifth  of  the  people, 
and  might  prevent  the  wishes  of  the  other  four-fifths.  As  to  the 
danger  of  altering  the  government,  whose  government  was  it  ? 
The  people's ;  and  when  two-thirds  of  the  people  wanted  an  alter- 
ation, they  will  effect  it  in  some  way  or  other.  It  would  be  safe  to 
require  the  consent,  for  two  years,  of  only  two-thirds  of  the  house  ; 
they  would  have  the  rights  of  the  people  at  heart,  more  than  those 
who  represented  property.  There  was  no  danger  of  a  political  ex- 
citement continuing  two  years,  so  as  to  have  a  bad  influence  on  the 
frame  of  government.  The  proposing  amendments  was  not  a 
subject  of  legislation,  and  there  was  no  need  of  a  check.  He  was 
content  with  this  amendment  of  the  resolution,  but  he  should  have 
liked  better  to  leave  the  subject  to  two-thirds  of  the  house  of  repre- 
sentatives alone. 

Mr.  Slocum  spoke  in  favor  of  the  amendment  as  compared  with 
the  resolution  reported  by  the  select  committee.  Half  a  loaf  was 
better  than  no  bread. 

Mr.  Q,uincy  said  that  those  who  maintained  the  organization  of 
the  senate,  were  on  popular  ground,  as  much  as  those  who  defended 
the  popular  branch.  It  was  for  the  interest  of  the  people  to  main- 
tain the  senate.  The  popular  branch  would  be  the  all-powerful 
one.  According  to  the  compromise,  two-thirds  of  a  majority  of  one 
half  of  the  people  would  send  two-thirds  of  the  house  of  represent- 
atives. It  was  all-important  to  the  balance  of  the  two  branches,  to 
require  the  assent  of  two-thirds  of  the  senate.  They  had  been 
making  a  compromise,  and  he  was  glad  to  see  it ;  but  he  wished 
the  weakest  branch  to  have  the  power  of  protecting  itself.  ^  hen- 
ever  there  should  "be  violent  parties,  they  would  set  the  principle  of 
amendment  at  work.  He  did  not  wish  to  see  the  effect  of  local  in- 
terests ;  he  would  rather  increase  the  number  of  the  senate.  He 
liked  fortv  better  than  thirty-six  :   he  wished  it  might  remain  :   he 


406  MASSACHUSETTS    CONVENTION. 

liked  old  numbers.      He  concluded  by  moving  to  postpone  the 
subject  until  tomorrow,  at  10  o'clock. 

Mr.  Starkweather  hoped  the  motion  to  postpone,  would  not 
prevail.  He  should  have  no  objection  to  a  provision  for  amend- 
ment, similar  to  the  one  in  the  constitution.  He  should  have  been 
satisfied  with  the  mode  reported  by  the  committee  ;  but  he  thought 
the  amendment  under  consideration,  guarded  as  it  would  be  by 
other  provisions  of  the  resolution,  would  be  safe. 

Mr.  GluiNCY  withdrew  his  motion. 

Mr.  Hazard  of  Hancock  was  opposed  to  both  the  resolutions  and 
the  amendment.  If  in  order,  he  would  move  to  amend  the  amend- 
ment, so  as  to  leave  the  power  to  two-thirds  of  the  house  of  repre- 
sentatives. The  people  were  the  ones  to  determine  whether  the 
constitution  should  be  amended. 

The  President  said  this  was  in  opposition  to  the  amendment, 
and  was  not  in  order. 

Mr.  Blake  said  this  was  a  very  important  subject,  and  he  moved 
to  have  it  postponed.  His  object  was,  to  have  a  motion  offered,  to 
let  an  experiment  be  tried,  for  a  limited  time,  say  five  or  ten  years, 
of  the  amendments  they  should  make.  It  would  be  a  pity,  if,  after 
so  long  a  session,  they  should  not  be  able  to  devise  something  that 
would  stand  the  test  of  at  least  a  few  years.  The  framers  of  the 
constitution  were  so  desirous  of  giving  it  stability,  that  they  pro- 
vided that  it  should  not  be  altered  under  fifteen  years.  He  should 
bring  in  a  resolution  for  the  purpose  of  trying  an  experiment  of 
this  kind. 

Mr.  Webster  had  no  objection  to  a  postponement;  he  was,  how- 
ever, satisfied  that  this  was  the  only  advisable  way  of  making 
amendments  to  the  constitution. 

Mr.  Austin  said  he  never  meant  to  deny  that  a  majority  of  the 
people  had  a  right  to  alter  the  constitution,  if  they  had  the  will ; 
the  question  was  only  as  to  the  mode  of  ascertaining  this  will. 
The  amendment  offered,  was  said  to  be  on  the  ground  that  the 
house  of  representatives  was  a  better  representation  of  the  people 
than  the  senate  was ;  he  objected  to  that  reason.  Concession 
enough  had  already  been  made  by  the  large  towns.  The  remark 
was  not  correct,  that  the  senators  from  two  districts  could  prevent 
an  amendment  from  being  proposed  to  the  people  ;  thirteen  would 
be  necessary  for  that  purpose.  When  two-thirds  of  the  popular 
branch  were  in  favor  of  an  amendment,  the  senate  would  not  resist 
for  light  reasons.  If  these  thirteen  resisted,  he  should  conclude 
they  were  doing  the  duty  for  which  they  were  intended.  The 
object  in  requiring  two-thirds,  was  not  to  prevent  necessary  amend- 
ments, but  such  as  were  unnecessary ;  to  prevent  firebrands  being 
thrown  among  the  people  to  kindle  discord.  A  great  many  propo- 
sitions had  been  made  for  amending  the  constitution  of  the  United 
States,  and  had  been  negatived  by  the  people.  But  this  was  done 
in  deliberative  assemblies,  in  the  legislatures  of  the  several  states  ; 
which  was  different  from  submitting  the  propositions  to  town  meet- 


MASSACHUSETTS    CONVENTION.  407 

ings.  He  would  not  intimate  that  the  people  in  town  meetings 
would  not  determine  right,  but  it  would  be  inconvenient  to  them  to 
be  often  called  upon.  He  thought  this  mode  of  submitting  amend- 
ments to  the  people,  by  two-thirds  of  each  branch  of  the  Legisla- 
ture, much  better  than  the  one  proposed  by  his  colleague,  (Mr. 
Blake)  of  calling  a  new  convention. 

Mr.  Blake  said  he  did  not  intend  to  have  a  new  convention 
called,  but  to  prevent  any  alteration,  in  any  way,  for  a  limited  time. 

Mr.  Banister  said  that,  on  the  principle  of  checks  and  balances, 
it  would  be  inconsistent  to  adopt  this  amendment,  after  retaining 
valuation  as  the  basis  of  the  senate.  It  was  as  important  to  the  se- 
curity of  the  people  to  protect  the  senate  as  the  house  of  represent- 
atives. The  object  in  having  the  small  body,  was  to  prevent  the 
effect  of  popular  excitement ;  and  if  only  a  majority  of  the  senate 
was  required,  this  majority  would  be  very  apt  to  be  carried  away 
by  the  same  popular  excitement  which  influenced  two-thirds  of  the 
house  of  representatives. 

Mr.  Webster  said  he  could  not  sit  quiet  under  the  charge  of  in- 
consistency. He  stated  the  other  day,  or  meant  to  state,  that  the 
senate  was  not  intended  as  a  check  against  the  people,  but  against 
the  house  of  representatives.  He  knew  no  principle  that  could  pre- 
vent a  majority,  even  a  bare  majority  of  the  people,  from  altering 
the  constitution.  The  object  of  the  mode  proposed  for  making 
amendments  in  it,  was  to  prevent  the  people  from  being  called  upon 
to  make  trivial  amendments,  or  any  amendments,  except  when  a 
real  evil  existed.  A  reason  for  requiring  two-thirds  of  the  house  and 
only  a  majority  of  the  senate  was,  that  the  general  sense  of  the 
people  was  better  expressed  by  representatives  from  small  districts, 
than  from  large  ones.  This  was  not  an  exercise  of  legislative  power 
— it  was  only  referring  to  some  branch  the  power  of  making  propo- 
sitions to  the  people.  Having  a  senate  to  consist  of  thirty-six  mem- 
bers, and  twelve  of  them  chosen  from  two  districts,  was  very  differ- 
ent from  having  fifty  senators  and  chosen  from  small  districts,  in 
regard  to  the  influence  of  one-third. 

The  amendment  was  adopted,  and  the  resolution,  as  amended, 
passed  to  a  second  reading. 

Tomorrow,  at  10  o'clock,  was  assigned  for  the  second  reading  of 
these  several  resolutions. 

Mr.  Banister  was  appointed  on  the  committee  for  inquiring  what 
business  was  required  to  be  done,  and  when  the  Convention  might 
have  a  recess,  in  the  room  of  Mr.  Davis,  who  had  left  town. 

The  resolution  of  the  same  standing  committee,  for  giving  the 
Legislature  power  to  erect  and  constitute  city  governments,  as  re- 
ported by  the  committee  of  the  whole,  with  amendments,  was  read. 
The  amendments  for  regulating  the  returns  at  elections,  and  for 
giving  the  Legislature  the  right  of  repealing  by-laws  of  cities,  were 
adopted,  without  debate. 

Mr.  Varnum  of  Dracut  objected  to  the  other  amendment,  which 
made  it  necessary  for  a  town   to  have  10,000  inhabitants  before  it 


408  MASSACHUSETTS    CONVENTION. 

could  be  incorporated.  He  said  it  was  desirable  to  have  uniformity 
in  the  government  of  our  towns.  He  therefore  wished  to  have 
30.000  substituted  for  10,000. 

The  question  was  taken  for  retaining  10,000,  and  negatived — 83 
to  136. 

A  slight  debate  ensued,  in  which  Messrs.  Rantoul,  J.  Phillips, 
Starkweather,  Jackson,  and  Prescott  took  part,  and  various 
numbers  were  proposed. 

The  question  was  taken  for  adopting  12,000,  and  decided  in 
the  affirmative — 165  to  84. 

The  resolution  as  amended  passed  to  a  second  reading. 

The  resolution  reported  by  the  same  select  committee,  that  it  is 
not  expedient  to  make  further  provision  in  the  constitution  relative 
to  the  substitution  of  affirmations  for  oaths,  was  read. 

Mr.  Baldwin  of  Boston  objected  to  it.  He  said  it  went  on  the 
supposition  that  Quakers  were  born  with  different  consciences  from 
other  men.  There  were  some  pious  men  who  had  no  objections  to 
taking  an  oath ;  there  were  others  equally  pious,  who  had.  No 
wicked  man  would  object  to  taking  an  oath  ;  and  he  thought  that 
a  solemn  affirmation  of  a  good  man,  made  on  the  presumption  that 
God  was  present,  ought  to  be  sufficient. 

Mr.  Hinckley  of  Northampton  said  he  had  found  no  reason  to 
satisfy  his  mind  why  Quakers  had  been  exempted  originally  from 
taking  oaths :  but  the  exemption  had  existed  for  a  long  time,  and 
no  great  inconvenience  had  arisen  from  it.  He  explained  his  views 
as  to  the  meaning  of  the  New  Testament,  where  it  commands  not 
to  swear,  and  cited  a  passage  from  the  Old  Testament,  where  God 
commands  to  swear  by  his  name.  He  thought  it  was  proper  to 
have  the  oath  in  the  name  of  the  Supreme  Being.  It  gave  a  so- 
lemnity to  the  proceedings  in  courts  of  justice,  and  he  hoped  no 
further  alterations  would  be  made  in  the  constitution. 

Mr.  Webster  said  that  as  to  oaths  in  courts  of  law,  the  Legisla- 
ture had  already  ample  powers.  Gentlemen  argued  as  if  nobody 
had  any  right  except  the  person  called  upon  to  swear  ;  when,  in 
truth,  he  was  the  person  who  had  the  least  right.  The  party  who 
called  him  to  testify  had  the  right.  A  man  on  trial  for  his  life  had 
a  right  to  the  testimony  of  a  witness  under  the  sanction  of  an  oath  ; 
there  was  no  security  otherwise.  If  the  reverend  gentleman  from 
Boston  (Mr.  Baldwin)  had  been  much  conversant  in  courts  of  law. 
he  would  have  seen  that  the  greatest  scoundrels  sometimes  pretend 
to  have  scruples  of  conscience  in  regard  to  taking  oaths. 

Some  further  debate  ensued,  in  which  Messrs.  Webster,  J.  Da- 
vis, Baldwin,  Austin.  Nichols,  H.  Lincoln,  and  Sprague  took 
part,  relating  as  well  to  oaths  of  office  as  to  other  oaths  ;  but  as 
the  same  arguments  were  brought  forward  when  the  subject  was 
discussed  in  committee  of  the  whole,  and  were  reported  in  that  part 
of  the  proceedings,  it  is  unnecessary  to  repeat  them. 

Mr.  Nichols  moved  that  when  the  question  was  taken  it  should 
be  by  yeas  and  nays.  Negatived — only  30  rising  in  favor  of  the 
motion. 


MASSACHUSETTS    CONVENTION.  409 

The  resolution  then  passed. 

A  motion  to  adjourn  was  negatived — 93  to  137. 

Sheriff's. — Mr.  Valentine  of  Hopkinton  offered  a  resolution  for 
providing  in  the  constitution,  that  sheriffs,  registers  of  deeds,  and 
county  treasurers,  shall  be  chosen  by  a  majority  of  the  ballots  of 
the  legal  voters  in  the  several  counties,  on  the  day  of 

Mr.  Valentine  said  he  was  aware  that  registers  of  deeds  and 
county  treasurers  were  now  elected  in  this  manner  ;  but  his  object 
in  including  them  in  his  resolution  was,  that  all  the  county  officers, 
in  case  the  proposition,  so  far  as  it  respects  sheriffs,  should  be 
adopted,  might  be  elected  on  the  same  day,  whenever,  according  to 
the  terms  of  their  offices,  they  should  happen  to  be  chosen  in  the 
same  year.  Mr.  V.  moved  that  his  resolution  be  committed  to  a 
committee  of  the  whole. 

Mr.  Starkweather  had  not  had  many  minutes  to  make  up  his 
mind  on  this  proposition,  but  as  it  was  a  new  subject,  and  one  of 
not  so  very  great  importance,  he  hoped  it  would  not  be  committed. 

Mr.  Savage  of  Boston  said  he  had  not  brought  forward  any  prop- 
osition himself  for  altering  the  constitution,  and  probably  should 
not ;  but  it  was  the  right  of  every  gentleman  making  such  a  propo- 
sition, to  have  it  considered  ;  and,  by  referring  this  proposition  to  a 
committee  of  the  whole,  the  gentleman  who  last  spoke  would  have 
a  little  time  to  make  up  his  mind. 

The  question  to  commit  was  negatived — 92  to  136. 

Mr.  Valentine  said  the  motion  was  of  more  consequence  than 
gentlemen  might  think.  At  present  the  sheriff  is  appointed  by  the 
governor  and  council.  It  was  one  of  the  most  important  and  lucra- 
tive offices  in  the  State.  It  was  important,  as  well  in  respect  to 
the  creditor  as  to  the  debtor.  The  present  mode  of  appointment 
gave  occasion  to  many  frauds  and  impositions,  and  in  times  of 
political  animosity  was  made  an  engine  for  party  purposes  and  for 
favoritism.  The  question  was  often,  not  who  was  best  qualified 
for  the  office,  but  who  had  most  friends  in  the  cabinet.  Much  had 
been  said  about  the  people's  rights.  In  the  present  case,  the  peo- 
ple would  have  a  fair  opportunity  of  judging  of  the  merits  of  the 
different  candidates,  and  of  selecting  the  one  best  qualified. 

Mr.  Wilde  rose  to  a  question  of  order.  He  said  he  had  voted 
for  committing,  on  the  ground  that  the  gentleman  could  not  discuss 
his  proposition  in  Convention. 

A  member  who  voted  in  the  majority  on  the  question  for  com- 
mitting, moved  a  reconsideration  of  the  vote. 

Mr.  Varnum  suggested  that  the  gentleman  from  Hopkinton  might 
accomplish  his  object  without  a  reconsideration,  if  he  would  vary 
his  motion  so  as  to  apply  to  sheriffs  only. 

Mr.  Valentine  said  he  had  no  objection.  He  only  wanted  to 
have  the  subject  considered,  which  he  thought  might  be  done  more 
conveniently  in  committee  than  in  convention.  He  modified  his 
proposition  according  to  Mr.  Varnum' s  suggestion. 

Mr.  Pre  scott  said  this  was  a  proposition  for  making  an  impor- 
52 


410  MASSACHUSETTS    CONVENTION. 

tant  alteration  in  the  constitution,  and  that  it  ought  to  be  com- 
mitted. 

The  question  was  taken  for  committing  it  to  a  committee  of  the 
whole,  and  decided  in  the  affirmative  without  a  division. 

The  resolution  respecting  the  pecuniary  qualifications  of  voters, 
with  Mr.  Blake's  amendment  that  every  citizen,  &c,  who  is  liable 
to  pay,  and  does  pay  taxes,  may  vote  for  governor,  &c,  as  passed  in 
committee  of  the  whole,  was  read. 

Mr.  Nichols  moved  to  amend  by  striking  out  "does  pay/' 

Mr.  Webster  said  this  came  to  universal  suffrage.  He  presumed 
the  intention  of  the  mover  of  the  original  amendment,  was  to  make 
every  person  who  voted  participate  in  the  support  of  the  govern- 
ment. He  had  expected  that  some  propositions  would  have  been 
brought  forward,  showing  the  mode  in  which  the  original  amend- 
ment could  be  carried  into  effect.  He  should  be  content  with  it,  if 
it  could  be  shown  to  be  more  convenient  than  the  old  mode.  He 
should  object  to  giving  up  all  pecuniary  qualification,  though  he 
might  be  content  with  the  smallest  tax.  There  was  a  great  differ- 
ence between  this  and  universal  suffrage. 

On  motion  of  Mr.  L.  Lincoln  the  House  adjourned. 


Tuesday,  December  26. 

The  Convention  met  and  attended  prayers  offered  by  the  Rev. 
Mr.  Palfrey. 

Mr.  Hyde,  in  pursuance  of  notice,  moved  that  when  the  Conven- 
tion adjourns  today,  it  shall  adjourn  to  the  second  Wednesday  of 
February  next.  He  stated,  in  support  of  the  motion,  that  the  Con- 
vention had  been  in  session  six  weeks,  and  from  the  progress  of 
business  there  was  reason  to  believe  that  several  weeks  longer 
would  be  necessary.  That  the  General  Court  stood  adjourned  to 
the  second  Wednesday  of  January,  and  that  about  seventy  members 
of  the  Convention  were  also  members  of  the  General  Court,  and 
would  wish  to  return  to  their  families  before  the  beginning  of  the 
session  of  that  body ;  and  that  an  advantage  would  be  gained  by 
giving  an  opportunity  to  the  members  of  the  Convention  to  return 
to  their  constituents,  and  learn  their  sentiments  in  regard  to  the 
measures  which  have  been  under  discussion  here. 

Mr.  Varnum  made  a  few  observations  upon  the  motion,  and  con- 
cluded by  moving  that  it  should  lie  upon  the  table,  to  be  taken  up 
next  week. 

The  motion  was  agreed  to — 166  to  30. 

Mr.  Prescott,  from  the  committee  to  whom  the  question  was 
referred,  submitted  the  following  report  : 

The  committee  appointed  to  inquire  what  business  now  before  the  Convention  or 
in  committee,  the  public  interest  requires  should  be  done,  and  at  what  time  an  ad- 
journment or  rising  of  the  Convention  may  take  place,  have  attended  to  that  subject, 
and  now  respectfully  report : 


MASSACHUSETTS     CONVENTION.  411 

That  the  report  of  the  select  committee  on  the  subject  of  the  judiciary  power,  and 
the  resolution  respecting  the  tenure  of  judicial  offices,  have  been  referred  to  the 
committee  of  the  whole,  but  have  not  been  acted  on  therein. 

That  the  report  of  the  select  committee  on  the  preamble  to  the  constitution  and 
the  declaration  of  rights  has  been  acted  on,  but  not  finished,  in  the  committee  of 
the  whole. 

That  the  report  of  tile  select  committee  on  the  subject  of  oaths,  subscriptions,  &c, 
and  on  the  resolution  which  respects  the  authorizing  of  the  Legislature  to  grant  city 
powers  in  certain  cases,  have  passed  the  first  reading  in  the  committee. 

That  the  report  of  the  select  committee  on  the  subject  of  the  University  at  Cam- 
bridge and  the  encouragement  of  literature,  &c,  has  been  acted  on  in  committee  of 
the  whole,  but  not  finished. 

That  the  report  of  the  committee  of  the  whole  on  the  resolution  relating  to  the 
pecuniary  qualifications  of  electors  is  now  before  the  Convention. 

That  the  report  of  the  committee  of  the  whole,  on  the  subject  of  the  senate  and 
house  of  representatives,  and  on  the  resolution  providing  for  the  representation  of  all 
the  classed  towns  for  the  years  when  the  valuation  shall  be  completed,  are  before 
the  Convention,  and  have  not  been  acted  on  therein. 

That  the  report  of  the  committee  on  the  subject  of  lieutenant  governor  and  coun- 
cil, is  before  the  Convention,  and  has  not  been  acted  on  therein. 

That  the  resolution  respecting  the  office  of  solicitor  general  has  been  referred  to 
the  committee  of  the  whole,  but  has  not  been  acted  on  therein. 

And  your  committee  further  respectfully  report,  that  in  their  opinion  the  public 
interest  absolutely  requires  that  the  reports  of  the  committee  of  the  whole  respecting 
the  lieutenant  governor  and  council,  and  respecting  the  senate  and  house  of  repre- 
sentatives, and  also  as  to  the  mode  of  proposing  amendments  to  the  constitution,  and 
on  the  subject  of  authorizing  the  Legislature  to  grant  city  powers  in  certain  cases, 
should  be  acted  upon  and  disposed  of  before  the  Convention  adjourns ;  and  that  an 
adjournment  may  take  place  on  Tuesday,  the  second  day  of  January  next. 

All  which  is  respectfully  submitted. 

By  order  of  the  committee, 

WILLIAM   PRESCOTT. 

On  motion  of  Mr.  Varnum  the  Convention  resumed  the  considera- 
tion of  the  resolution  relative  to  the  pecuniary  qualifications  of 
voters.  The  question  being  stated  on  the  motion  to  amend  by- 
striking  out  the  words,  "  and  does  pay,"  so  as  to  extend  the  right 
of  voting  to  every  inhabitant  who  is  subject  to  pay  taxes, — 

Mr.  Nichols  withdrew  the  motion. 

Mr.  Blake  then  moved  to  amend  the  resolution  so  that  the  right 
of  voting  shall  be  extended  to  "  every  male  inhabitant  being 
twenty-one  years  of  age,  resident  in  the  town  where  he  offers  his 
vote  for  one  year,  and  having  paid  or  been  subject  by  law  to  pay 
taxes  in  the  said  town,"  with  exceptions  and  provisions  in  relation 
to  paupers  and  persons  exempted  from  taxation. 

Mr.  Blake  said  that  he  was  not  the  advocate  of  universal  suf- 
frage. That  doctrine  could  not  be  sustained  on  any  principle.  No 
person  who  did  not  contribute  to  the  support  of  government  was  so 
far  a  party  to  the  social  compact  as  to  have  a  right  to  a  voice  in  the 
election  of  the  officers  of  government.  But  every  person  whose 
situation  in  life  was  such  that  the  Legislature  could  demand  of  him 
a  tax,  if  it  were  nothing  but  a  poll  tax,  on  the  principle  that  repre- 
sentation and  taxation  ought  to  go  together,  ought  to  be  entitled  to 
a  vote.  Being  subject  to  a  tax  he  considered  equivalent  to  having 
paid  a  tax.  To  put  the  right  on  the  ground  of  actual  payment  of  a 
tax,  or  of  having  been  assessed,  would  be  to  put  the  right  of  suf- 


412  MASSACHUSETTS    CONVENTION. 

frage  in  the  power  of  the  assessors  in  a  manner  wholly  inconsistent 
with  the  rights  of  the  citizen.  He  inquired  on  what  ground  of 
principle  any  person  subject  to  be  taxed  could  be  excluded,  and  pro- 
ceeded to  state  the  principles  on  which  other  persons,  such  as 
minors,  aliens,  and  females,  were  excluded.  In  relation  to  the  last 
class  of  persons  he  said  that  the  subjects  of  the  laws  were  made  up 
of  families,  and  that  in  all  families  there,  were  two  departments. 
The  home  department  was  one  in  which  women  have  not  only  the 
right  of  suffrage,  but  the  right  of  sovereign  control.  He  proceeded 
to  state  a  variety  of  arguments  in  support  of  the  principle  which  he 
had  laid  down,  and  to  show  its  consistency  with  the  other  prin- 
ciples of  the  constitution. 

Mr.  Varnum  agreed  with  the  gentleman  who  last  spoke  in  most 
of  the  principles  he  had  advanced,  but  not  in  his  conclusion.  He 
stated  a  number  of  objections  to  the  amendments  proposed,  and  his 
reasons  for  preferring  the  resolution  as  agreed  to  by  the  committee 
of  the  whole.  He  did  not  believe  the  inconvenience  would  be  so 
great  as  was  apprehended,  or  that  there  was  any  danger  of  the 
abuses  of  power  on  the  part  of  assessors,  which  gentlemen  say  they 
may  practice  if  the  resolution  is  adopted.  He  objected  to  that  fea- 
ture of  the  amendment  that  required  a  year's  residence  in  a  town 
before  acquiring  a  right  to  vote. 

Mr.  Blake  thought  that  it  would  not  be  correct  to  extend  the 
right  of  voting  to  all  persons  that  might  be  casually  in  town  at  the 
time  of  election.  But  he  was  willing  that  the  term  of  residence 
should  be  fixed  at  six  months. 

Mr.  Dana  said  that  there  were  some  persons  who  would  come  to 
the  polls,  if  there  was  no  term  of  previous  residence  required,  who 
ought  to  be  excluded.  There  are  probably  a  thousand  or  fifteen 
hundred  persons  who  come  into  the  State  every  year  in  March,  and 
get  employment  as  laborers,  who  do  not  intend  to  make  it  their  per- 
manent residence,  and  who  therefore  ought  not  to  have  a  voice  in 
the  choice  of  officers  of  government.  He  thought  that  a  year's 
residence  ought  to  be  required ;  that  although  it  would  operate  in- 
juriously in  some  few  instances,  the  number  would  be  so  small  as 
not  to  counterbalance  the  advantages.  He  stated  an  amendment 
which  he  proposed  to  offer  in  case  that  under  consideration  should 
not  be  adopted. 

The  question  was  then  taken  on  Mr.  Blake's  amendment  and 
negatived. 

Mr.  Dana  then  moved  that  the  resolution  should  be  so  amended 
that  the  right  of  voting  should  be  extended  to  every  male  citizen  of 
twenty-one  years  of  age,  who  has  resided  in  any  town  of  the  Com- 
monwealth for  one  year,  and  who  has  paid  any  tax  in  the  Common- 
wealth for  the  year  next  preceding  the  election,  or  who  has  not  been 
assessed,  and  ought  by  law  to  have  been  assessed,  &c. 

Mr.  Foster  said,  that  not  only  taxation  and  representation,  but 
taxation  and  suffrage  ought  to  go  together.  Young  men  of  twenty- 
one  years  old  were  subject  to  a  poll  tax  and  to  the  obligation  of  per- 


MASSACHUSETTS     CONVENTION.  413 

forming  military  duty,  which  is  a  heavy  tax.  He  thought  they 
ought  to  be  admitted  to  the  right  of  voting. 

Mr.  Apthorp  thought  there  would  be  difficulties  in  carrying  the 
provision  of  the  amendment  into  effect.  He  thought  it  would  be 
better  to  let  the  right  depend  on  the  fact  of  having  actually  paid  a 
tax  for  the  current  year. 

Mr.  Locke  of  Billerica  moved  that  the  resolution  and  proposed 
amendment  be  committed  to  a  select  committee. 

Mr.  Lincoln  opposed  the  commitment. 

The  motion  to  commit  was  then  agreed  to — 179  to  115 — and 

Messrs.  Dana,  Locke,  Apthorp,  Varnum  and  Leland  were  ap- 
pointed. 

The  Convention  then  proceeded  to  the  order  of  the  day — it  being 
the  second  reading  of  the  several  resolutions,  read  the  first  time  in 
convention  yesterday. 

The  first  resolution,  substituting  an  oath  of  allegiance  and  an  oath 
of  office,  for  the  oaths,  subscriptions  and  declarations  required  by  the 
constitution,  was  read  and  passed. 

The  second  resolution  declaring  the  incompatibility  of  offices,  was 
also  read  a  second  time  as  amended,  and  passed. 

The  third  resolution  providing  for  future  amendments  of  the  con- 
stitution was  read  as  amended. 

Mr.  Q-uincy  opposed  the  resolution,  because  he  was  not  satisfied 
with  the  amendment  by  which  a  majority  is  substituted  for  two 
thirds,  in  relation  to  the  senate.  He  contended  that  the  senate  was 
an  independent  body,  and  that  it  was  important  that  it  should  be 
kept  independent  and  not  liable  to  be  carried  away  by  any  popular 
current.  He  considered  the  power  of  the  senate  to  preserve  its  in- 
dependence, a  material  part  of  the  balance  of  the  two  houses.  He 
supported  this  position  by  a  variety  of  arguments. 

Mr.  Webster  repeated  the  grounds  on  which  he  made  the  propo- 
sition. It  occurred  to  the  committee  that  with  the  experience  which 
we  had  had  of  the  constitution,  there  was  little  probability  that, 
after  the  amendments  which  should  now  be  adopted,  there  would 
ever  be  any  occasion  for  great  changes.  No  revision  of  its  general 
principles  would  be  necessary,  and  the  alterations  which  should  be 
called  for  by  a  change  of  circumstances,  would  be  limited  and  spe- 
cific. It  was  therefore  the  opinion  of  the  committee  that  no  pro- 
vision for  a  revision  of  the  whole  constitution  was  expedient,  and 
the  only  question  was  in  what  manner  it  should  be  provided  that 
particular  amendments  might  be  obtained.  It  was  a  natural  course 
and  comformable  to  analogy  and  precedent  in  some  degree,  that 
every  proposition  for  amendment  should  originate  in  the  Legislature 
under  certain  guards,  and  be  sent  out  to  the  people.  The  question 
then  arose,  what  guards  should  be  provided  ?  It  was  thought  proper 
to  provide  that  an  amendment  should  not  be  proposed  and  sent  out 
to  the  people  under  the  influence  of  a  popular  excitement.  To  pre- 
vent this  they  proposed  to  require  the  repeated  assent  of  the  Legis- 
lature ;  and  the  question,  in  the  mean  time,  would  be  in  some  meas- 


414  MASSACHUSETTS    CONVENTION. 

ure    tried  by  the  people,  who  would  express  their  opinions  in  the 
next  election.     This  was  one  of  the  guards  which  they  proposed, 
and  another  was,  that  the  measure  should  be  assented  to  by  more 
than  a  bare  majority  of  the  two  houses.     They  agreed  to  propose 
that  two  thirds  of  both  houses  should  be  required.     But  it  had  not 
been  decided  at  that  time  in  what  manner  the  senate  should  be  con- 
stituted.    The  number  of  that  body  was  afterwards  fixed  at  thirty- 
six.     It  had  been  heard  repeatedly  in  debate  that  if  the  senate  is 
organized  in  the  manner  proposed,  and  two-thirds  of  the  senate  are 
required  to  assent  to  any  amendment  it  would  be  in  the  power  of 
less  than  a  third  of  the  people  to  prevent  any  amendment.     It  was 
true   that  such  would  be  the  effect.     Under  these  circumstances 
some  of  the  committee  were  of  opinion  that  satisfaction  would  be 
given  if  two  thirds  of  the  popular  branch  only  were  required,  and  a 
majority  of  the  senate.     Would  not  this  furnish  a  reasonable  se- 
curity against  unreasonable  alterations  ?     He  thought  that  no  great 
reliance  would  be  placed  on  the  additional  check  of  two  thirds  of 
the  senate.     If  two  thirds  of  the  other  branch  should  repeatedly  in- 
sist on  any  particular  amendment,  the   senate  would  be  obliged  to 
yield  to  it.     If  an  attack  was  made  upon  the  rights  of  the  senate 
there  was  no  reason  to  suppose  that  a  majority  of  that  body  would 
consent  to  sacrifice  them. 

Mr.  Saltonstall*  was  opposed  to  the  resolution  as  amended,  and 
stated  the  grounds  of  his  dissatisfaction  at  some  length. 

Mr.  Hoyt  was  in  favor  of  the  amendment,  if  the  number  of  the 
senate  was  to  be  fixed  at  thirty-six.  If  the  number  were  increased 
to  forty  he  should  be  opposed  to  the  amendment. 

Mr.  Apthorp  had  serious  objections  to  the  amendment  when  it 
was  proposed  yesterday,  and  those  objections  had  not  been  removed, 
but  on  the  contrary  had  been  strengthened  in  his  mind  by  reflection. 
He  thought  that  the  senate  would  be  composed  of  men  as  intelligent 
and  as  much  disposed  to  consult  the  will  of  the  people  as  the  other 
branch  of  the  Legislature.  He  proceeded  to  state  his  reasons  against 
the  resolution  as  amended. 

Mr.  Varnum  considered  the  constitution  as  the  work  of  the  people, 
and  ought  to  be  subject  to  alteration  by  the  people.  He  agreed  that 
the  senate  should  be  put  on  an  equal  footing  with  the  house  of  rep- 
resentatives, but  he  would  do  it  by  bringing  the  house  to  the  senate, 
and  not  the  senate  to  the  house.  But  if  he  could  not  obtain  all  the 
improvement  that  he  wished,  he  would  take  as  much  as  he  could 
get.  It  was  with  this  view  that  he  voted  for  the  resolution  yester- 
day. He  quoted  a  part  of  the  bill  of  rights  which  it  had  not  been 
proposed  to  change,  to  show  that  in  the  view  of  the  framers  of  the 
constitution,  all  the  rights  of  self-government  were  vested  in  the 
people,  and  by  the  people  was  meant  a  majority  of  the  people.  He 
argued  that  there  was  an  inconsistency  in  admitting  the  right  of  the 
people  to  establish  government,  and  excluding  them  from  acting  on 
an  amendment  or  change  of  the  constitution  by  such  an  obstruction 
as  had  been  proposed. 


MASSACHUSETTS    CONVENTION.  415 

Mr.  Fay  was  opposed  to  facilities  in  amending  the  constitution, 
and  had  been  in  favor  of  a  provision  that  should  limit  the  right  of 
offering  amendments  to  certain  periods,  in  preference  to  having  it 
open  at  all  times.  He  had  been  discouraged  from  offering  the  prop- 
osition, but  he  was  extremely  sorry  to  hear  the  motion  for  the 
amendment  of  the  proposition  of  the  select  committee.  The  gentle- 
man who  moved  the  amendment  had  said  that  if  the  senate  had  con- 
sisted of  a  larger  number  he  should  not  have  been  in  favor  of  the 
amendment.  Mr.  F.  was  in  favor  of  enlarging  the  senate,  and  with 
a  view  that  this  question  might  be  first  acted  on,  he  moved  that  the 
resolution  now  before  the  Convention  be  laid  on  the  table. 

Mr.  Lincoln  was  opposed  to  the  postponement,  and  stated  his  rea- 
sons at  some  length. 

The  motion  to  lay  on  the  table  was  negatived. 
Mr.  Parker  of  Charlestown  moved  to  amend  by  inserting  after  "  a 
majority  of  qualified  voters,"  the  words  "voting  thereon."     The 
amendment  was  agreed  to. 

Mr.  Pickman,  in  reply  to  the  remarks  of  the  gentleman  from  Dra- 
cut,  said  he  did  not  consider  it  a  question  what  power  should  be 
vested  in  the  people,  but  what  power  should  be  vested  in  the 
Legislature.  He  agreed  that  the  people  are  the  sovereigns  of  the 
country,  and  that  a  majority  must  control  the  will  of  the  people.  But 
the  question  now  was,  what  powers  should  be  given  to  the  Legisla- 
ture. He  was  opposed  to  give  the  power  of  proposing  amendments 
to  two-thirds  of  the  house  and  a  majority  of  the  senate.  He  should 
be  contented  to  take  three-fifths  of  the  senate. 

The  question  was  then  taken  on  the  resolution  and  it  passed. 
The  resolution  providing  that  the  Legislature  shall  have  power  to 
grant  charters  of  incorporation  to  towns  of  more  than  12,000  inhabi- 
tants was  then  read  and  passed. 

Mr.  Fisher  of  Westborough  rose  to  make  a  motion.  He  recol- 
lected that  the  Convention  of  1780,  when  they  had  made  about  the 
same  progress  as  had  now  been  made  by  this  Convention,  thought 
proper  to  choose  a  committee  to  form  an  address  to  the  people,  stat- 
ing the  reasons  of  the  convention  in  favor  of  the  constitution.  We 
had  not  been  so  fortunate  as  to  be  unanimous  on  all  the  amend- 
ments that  had  been  agreed  to,  and  he  thought  it  would  be  likely  to 
have  a  favorable  effect  in  reconciling  the  people  to  the  amendments 
that  should  be  proposed,  if  the  same  course  were  now  adopted.  He 
therefore  moved  that  a  committee  be  appointed  to  prepare  an  ad- 
dress to  the  people  to  accompany  the  amendments  that  should  be 
submitted  for  their  ratification  or  rejection. 
Mr.  Foster  opposed  the  motion. 

Mr.  Slocum  was  in  favor  of  it.  He  had  been  trying  for  a  week 
past  to  conjure  up  some  reasons  by  which  he  might  satisfy  his  con- 
stituents of  the  propriety  of  the  measures  they  had  been  adopting. 
He  hoped  the  committee  would  be  more  successful. 

Mr.  Savage  and  Mr.  Blake  spoke  in  favor  of  the  motion,  and  it 
was  agreed  to.     It  was  ordered  that  the  committee  consist  of  five. 


416  MASSACHUSETTS    CONVENTION. 

Mr.  Hyde  of  Lenox  offered  as  a  substitute  for  the  third  and  fourth 
resolutions  of  the  select  committee  in  relation  to  religious  worship, 
a  resolution  declaring  the  natural  and  inalienable  right  of  every 
individual  to  worship  God  according  to  the  dictates  of  his  con- 
science, the  right  of  opinions  and  sentiments,  and  the  right  of  re- 
ligious societies,  incorporated  and  unincorporated,  to  elect  their 
teachers.  The  resolution  does  not  propose  any  legal  provision  for 
the  support  of  public  worship. 

The  resolution  was  committed  to  the  committee  of  the  whole, 
who  have  that  subject  under  consideration.  A  motion  to  print  it 
was  negatived — 115  to  158. 

Leave  of  absence  was  granted  to  Messrs.  Bloss  of  Cheshire, 
Stebbins  of  Granville,  Crane  of  Northborough,  Marcy  of  Green- 
wich, Hapgood  of  Petersham,  and  March  of  Salisbury. 

Leave  was  refused  to  Messrs.  Stowell  of  Peru,  Barnard,  Folger, 
Mitchell  and  Burrill  of  Nantucket,  Messrs.  Lyman  of  Goshen,  and 
Hazard  of  Hancock. 

It  was  ordered  that  two  persons  should  be  added  to  the  commit- 
tee on  leave  of  absence.  Dr.  Warren  of  Boston,  and  Dr.  Stark- 
weather of  Worthington  were  added. 

Mr.  Hinckley  of  Northampton  offered  a  resolution  proposing  to 
amend  the  constitution,  by  adding  an  article  in  the  declaration  of 
rights,  that  no  person  shall  be  subjected  to  trial  for  any  offence 
which  would  subject  him  to  ignominious  punishment,  except  on 
presentment  of  a  grand  jury  of  the  county  in  which  the  case  is  tried, 
except  in  cases  to  which  law  martial  may  be  properly  applicable. 
He  stated  his  reasons  for  offering  the  resolution.  Committed  to 
the  committee   of  the  whole   on  the  declaration  of  rights. 

It  was  ordered  that  when  the  House  adjourned  they  adjourn  to 
half  past  3  o'clock  this  afternoon. 

Adjourned. 

Afternoon  Session. 

Mr.  Phelps  of  Chester  offered  a  resolution  proposing  to  add 
another  article  to  the  declaration  of  rights,  that  no  man  or  class  of 
men  shall  ever  be  deprived  of  the  right  of  being  elected  to  office  or 
be  exempted  from  taxation,  on  account  of  any  lawful  profession  or 
calling  ;  provided  however,  that  the  Legislature  may  exempt  from 
taxation  ministers  of  the  gospel  whose  estate  does  not  exceed  $1000 
in  the  whole. 

Referred  to  the  committee  of  the  whole  on  the  declaration  of  rights 
—89  to  84. 

Mr.  Hoar  of  Concord  offered  two  resolutions,  which  he  designed 
for  a  substitute  to  the  third  and  fourth  resolutions  reported  by  the 
select  committee  on  the  declaration  of  rights.  The  first  resolution 
was.  that  it  is  expedient  to  substitute  "  Christian"  for  "protestant  " 
in  the  third  article  of  the  declaration  of  rights.  The  second  reso- 
lution was,  that  it  was  inexpedient  to  make  any  further  alteration 
in  the  third  article  than  what  is  already  made  and  is  proposed  to  be 
made  by  the  first  resolution. 

Referred  to  the  same  committee  of  the  whole — 144  to  47. 


MASSACHUSETTS    CONVENTION.  417 

Third  Article  of  the  Declaration  of  Rights.— The  House  went 
into  committee  of  the  whole  upon  the  report  of  the  select  committee 
upon  the  preamble  and  declaration  of  rights ;  Mr.  Vakntjm  in  the 
chair. 

The  question  was  upon  the  amendment,  as  amended  on  Saturday, 
offered  by  Mr.  Saltonstall  as  a  substitute  for  the  third  and  fourth 
resolutions  of  the  select  committee  on  the  declaration  of  rights. 

Mr.  L.  Lincoln  of  Worcester  said  it  had  been  his  misfortune  or 
his  fault,  he  would  not  decide  which,  to  be  absent,  the  three  days  in 
which  the  present  subject  had  been  under  discussion.     He  should 
not  say  much  on  the  merits  of  the  present  proposition  in  a  religious 
point  of  view,  but  should  make  some  remarks  upon  it  as  involving 
a  question  of  property  more  suitable  for  the  consideration  of  the 
civilian  than  the  divine.     The  proposition  contained  a  provision  for 
taxing  the  lands  of  non-resident  owners  for  the  support  of  the  clergy- 
men of  the  society  which  happened  to  be  the  first   in  any  town. 
Against  this  as  a  civilian  he  dissented.     He  was  in  favor  of  support- 
ing religion,  and  as  the  father  of  a  family,  if  he  were  reduced  to  the 
alternative,  he  would  prefer  that  his  children  should  have  the  moral 
and  religious  instruction  of  Sunday  rather  than  the  literary  instruc- 
tion of  the  other  six  days  of  the  week.     Man  was  a  religious  animal, 
and  would  fix  upon  one   object   or  on  another  for  his  adoration. 
Whether  it  was  better  to  support  religion  by  the   civil  government 
was  a  question  for  others  to  decide.     He  would  proceed  to  examine 
what  influence  the  present  proposition  would  have  in  a  civil  view. 
Persons  would  be  taxed  in  consequence  of  it  for  the   support  of  a 
religion  which  they  dissapproved.     This  was  a  tyranny  which  no 
freeman  ought  to  endure.     The  proposition  was  to  give  the  taxes  of 
lands  of  non-residents  for  the  support  of  the  minister  of  the  first 
society  in  any  town,  although  contrary  to  the  wishes  of  a  majority 
of  the  corporators  of  such  town.     Formerly  the  bounds  of  towns 
and  parishes  were  coextensive.     Suppose  a  town  and  parish  of  this 
kind  to  have  been  founded  one  hundred  years  ago,  when  all  the  in- 
habitants were  of  one    denomination.     It  was  a  corporate  duty  of 
such  town  to  support  religion,  just  as  it  was  to  support  the  poor  or 
maintain    the  highways.      Since  the  incorporation,   various  other 
denominations  spring  up  and  far  exceed  in  number  the  members  of 
the  original  society  ;  yet  the  effect  of  this  proposition  will  be,  that 
the  taxes  of  the  non-residents  will  go  entirely  to  the  support  of  the 
old  parish  minister  alone.     A  society  might  exist  by  these   taxes, 
when  it  was  obsolete  for  every  other  purpose.     In  a  town  near  to 
Worcester,  the  teacher  was  half  supported  by  these  taxes,  while  his 
religious  principles  were  totally  abhorrent  to  those  of  the  majority 
of  the  inhabitants  of  the  town.     Mr.  L.  had  no  proposition  of  his 
own  to  bring  forward,  but  his  object  was  to  show  the  monstrous 
impropriety  and  absurdity  of  this  amendment. 

The  question  was  taken  on  the  amendment  and  determined  in  the 
negative — 15  to  226. 
53 


418  MASSACHUSETTS    CONVENTION. 

Mr.  Parker  of  Boston  moved  that  the  committee  should  proceed 
to  the  consideration  of  the  resolutions  offered  by  Mr.  Hoar  as  a  sub- 
stitute for  the  third  and  fourth  resolutions  of  the   select  committee. 

Mr.  Williams  of  Beverly  objected  to  the  motion,  on  the  ground 
that  his  proposition  ought  to  have  the  priority. 

Mr.  Blake  wished,  if  it  was  possible,  that  the  resolutions  of  the 
committee  might  be  acted  upon  on  their  merits,  without  being  buried 
up  by  the  great  number  of  amendments  continually  offered.  As  a 
circumstance  in  favor  of  this  course,  he  stated  that  that  committee 
had  sat  longer  than  any  other  of  the  select  committees  and  had  de- 
voted a  great  deal  of  attention  to  this  subject. 

Mr.  Wilde  supported  the  motion  to  take  up  Mr.  Hoar's  resolu- 
tions in  order  to  procure  the  sense  of  the  House,  whether  it  was  neces- 
sary to  make  any  further  alterations  in  the  third  article.  His  view 
was  this  ;  that  the  committee  having  settled  that  it  was  proper  to 
provide  for  the  support  of  religion,  it  only  remained  to  see  whether 
any  modification  were  necessary  as  to  the  manner  of  making  this 
provision.  He  should  have  no  objection  himself  to  several  modifi- 
cations ;  so  it  was  with  other  gentlemen  ;  but  there  was  so  little  har- 
mony among  them,  as  to  any  one  particular  modification,  that  it 
would  be  difficult  to  come  to  any  satisfactory  result.  And  he  believed 
the  third  article  might  well  remain  as  it  is,  since  the  Legislature  had 
the  power  to  make  all  the  modifications  which  had  been  pro- 
posed. The  existing  laws  have  made  the  provisions  required, 
and  they  have  -been  sanctioned  by  a  judicial  decision,  which  makes 
it  satisfactory.  It  was  improper  to  encumber  the  constitution  with 
the  details  of  legislation.  He  thought  the  resolutions  of  the  gentle- 
man from  Concord  were  previous  in  their  nature,  and  ought  to  be 
taken  up  before  the  resolutions  of  other  gentlemen. 

Mr.  Baldwin  of  Boston  spoke  against  the  motion. 

The  committee  voted  to  take  up  Mr.  Hoar's  resolutions — 180  to 
175. 

The  resolutions  were  read. 

Mr.  Ware  of  Boston  inquired  whether  it  was  necessary  to  vote 
upon  both  resolutions  together. 

The  Chairman  thought  the  question  was  not  divisible. 

Mr.  Webster  suggested  that  although  the  question  for  striking 
out  and  inserting  was  indivisible,  yet,  as  it  was  proposed  to  insert 
two  resolutions,  the  question  was  divisible,  as  to  the  matter  to  be 
substituted. 

Mr.  Taft  inquired  what  would  be  the  effect  of  adopting  this 
amendment. 

The  Chairman  said  it  would  do  away  all  further  questions  on  the 
third  article. 

Mr.  Morton  objected  to  the  course  of  proceeding.  He  thought 
the  third  resolution  only  was  before  the  committee.  No  man  could 
move  to  strike  out  two  resolutions.  He  had  been  waiting  for  an  op- 
portunity of  giving  his  opinion  on  the  resolutions  of  the  committee. 
The  question  was  upon  the  third  resolution,  and  if  any  part  of  it 


MASSACHUSETTS    CONVENTION.  419 

was  to  be  amended,  let  the  amendment  be  put  in,  when  the  resolu- 
tion is  read. 

Mr.  Apthorp  said  it  was  perfectly  in  order  to  move  to  strike  out 
both  and  insert  a  substitute. 

The  Chairman  wished  the  committee  to  determine  as  to  the  divis- 
ibility of  the  question. 

The  committee  determined  that  it  was  not  divisible. 

Mr.  Tillinghast  hoped  the  committee  would  not  preclude  them- 
selves from  making  other  alterations  in  the  third  article,  and  from 
considering  the  resolutions  of  the  committee,  by  accepting  this  amend- 
ment. 

Mr.  Hoar  observed  that  the  object  of  the  first  resolution  for  sub- 
stituting "Christian"  for  "  protestant "  in  the  third  article,  was  ob- 
viously to  let  in  the  Roman  Catholics  to  all  the  privileges  enjoyed 
by  other  denominations.  The  object  of  the  other  was  equally  plain. 
It  was  simply  declaring  that  it  is  inexpedient  to  make  further  altera- 
tions in  the  third  article.  The  gentleman  from  Dorchester  had  cer- 
tainly had  an  opportunity  of  considering  at  large  the  third  resolu- 
tion, when  any  of  the  substitutes  had  been  proposed.  The  adop- 
tion of  the  second  of  these  resolutions  will  declare  that  the  provis- 
ions in  the  constitution  are  to  be  preferred  to  those  which  have  been, 
or  might  be  brought  forward.  Those  gentlemen  who  have  projects 
for  alteration,  which  they  think  will  be  attended  with  great  advan-* 
tages,  and  which  they  think  may  be  adopted  by  the  committee, 
would  of  course  vote  against  him.  So,  as  to  the  proposition  of  the 
gentleman  from  Beverly  ;  if  gentlemen  think  it  proper  to  make  one 
hundred  or  five  hundred  societies,  they  would  vote  against  him. 
Those  who  think  it  expedient  to  make  these  innumerable  constitu- 
tional corporations,  in  preference  to  legislative  corporations,  would 
vote  against  him.  On  the  contrary,  those  who  had  devoted  a  great 
deal  of  time  to  the  subject,  and  had  made  up  their  minds,  that 
nothing  better  than  the  third  article  can  be  obtained,  would  vote 
for  him. 

Mr.  Lincoln  of  Boston  said  he  saw  no  difference  between  the 
effect  of  this,  supposing  the  law  of  1811  to  be  repealed,  and  the 
effect  of  the  proposition  of  the  gentleman  from  Salem,  (Mr.  Salton- 
stall.)  He  thought  if  this  proposition  was  adopted,  we  should 
leave  our  dearest  rights,  the  rights  of  conscience,  in  the  power  of 
the  Legislature  ;  he  hoped  this  would  not  be  done.  The  time  would 
come,  when  this  system  of  the  constitution  would  be  repealed.  It 
had  been  already  repealed,  in  consequence  of  the  liberal  act  of  1811 ; 
but  that  law  might  be  repealed,  though  he  should  consider  the  repeal 
as  an  infringement  on  the  rights  and  liberties  of  conscience.  What 
were  the  liberties  of  conscience  ?  The  liberty  to  attend  public 
worship  where  we  pleased  and  pay  what  teacher  we  pleased.  He 
did  not  consider  it  liberty  of  conscience  to  pay  as  the  dissenters  do 
in  England.  If  this  proposition  was  adopted,  our  property  might  be 
taken  from  us  to  support  a  religion  which  we  deemed  ruinous  to  man- 
kind.    He  hoped  before  the  question  was  taken,  every  line   of  the 


420  MASSACHUSETTS    CONVENTION. 

third  resolution  of  the  committee  would  be  thoroughly  considered, 
in  connection  with  the  proposition  of  the  gentleman  from  Beverly. 

Mr.  Prescott  said  they  were  either  to  make  an  unalterable  law 
for  posterity,  or  a  law  which  should  be  left  to  posterity  to  amend. 
He  preferred  the  last  course.  He  was  in  favor  of  the  motion  of  the 
gentleman  from  Concord.  They  had  struck  out  of  the  constitution 
a  part  that  was  nugatory,  and  the  alteration  proposed  by  the  first  of 
these  resolutions  was  a  small  one  ;  but  some  gentlemen  wanted  to 
strike  out  the  whole  of  the  rest  of  the  third  article.  There  was  no 
end  of  projects.  The  question  was  whether  they  should  provide 
materially,  or  whether  they  should  leave  the  power  to  the  Legisla- 
ture to  make  such  provisions  as  circumstances  may  require.  There 
was  no  difference  of  opinion  as  to  the  propriety  of  supporting  reli- 
gion. The  only  question  was,  how  it  should  be  supported.  The 
constitution  provides  that  the  expense  of  supporting  religion  shall  be 
paid,  and  any  person  has  a  right  to  attend  on  the  instructions  of  any 
teacher,  and  may  pay  his  taxes  to  his  use.  A  further  provision  has 
been  made  by  the  Legislature,  and  the  law  has  been  determined  by 
the  supreme  court  to  be  constitutional.  These  provisions  include 
all  cases.  People  may  go  from  one  teacher  to  another,  whether  of 
the  same  or  of  a  different  denomination,  and  carry  their  taxes  with 
them.  He  did  not  mean  to  say  that  this  was  right,  to  desert  their 
old  minister,  who  had  spent  his  best  days  in  giving  them  instruc- 
tion ;  he  only  said  they  might  do  it.  Further,  instead  of  having  a 
preacher  every  Sunday,  they  may  have  one  once  a  month.  What 
do  they  want  more  ?  The  present  laws  provide  for  all  existing  cases, 
and  yet  the  Convention  is  called  upon  to  make  laws  for  all  posterity. 
They  could  not  know  what  inconveniences  may  arise  in  future. 
And,  he  asked,  why  was  not  the  Legislature  to  be  trusted  ?  A  prop- 
osition for  the  repeal  of  the  law  of  1811  must  go  through  both 
branches — both  branches  must  feel  the  evil  of  it  before  it  could  be 
repealed.  The  Legislature  would  know  better  than  they  could, 
what  inconveniences  may  arise. 

Mr.  Low  of  Beverly  said  if  they  did  enjoy  so  much  liberty  as  the 
gentleman  had  stated,  he  was  content.  But  he  wished  to  know  why 
they  could  not  hold  this  liberty  under  the  constitution,  as  well  as 
hold  other  rights  under  it. 

Mr.  Prescott  replied  that  they  did  hold  it  under  the  constitution, 
in  the  same  manner  as  they  did  property.  In  both  cases  the  Legis- 
lature had  the  power  of  making  regulations. 

Mr.  Blake  said  that  from  the  course  which  had  been  pursued,  it 
was  probable  there  was  a  majority  of  members  in  favor  of  the  amend- 
ment. He  had  already  given  his  opinion  of  having  a  subject  dis- 
cussed till  unanimity  was  produced.  If  there  should  be  but  a  majority 
of  sixty  on  this  question,  he  should  not  wonder  if  the  people  rejected 
the  proposition  with  disdain.  The  select  committee  were  of  opinion, 
that  the  general  principles  of  the  third  article  ought  to  be  retained. 
Their  object  was  to  reconcile  the  two  great  purposes  of  security  of 
public  worship,  and  liberty  of  conscience.     It  was  a  question,  whe- 


MASSACHUSETTS    CONVENTION.  421 

ther  the  subject  of  serving  the  Almighty  God  should  not  have  a  pre- 
eminent place  in  the  constitution.  While  some  thought  it  should 
not,  he  uniformly  maintained  the  contrary  opinion.  He  was  unwil- 
ling to  leave  anything  on  the  subject  of  conscience  and  religious 
freedom  to  the  Legislature.  He  was  not  altogether  satisfied  with  the 
report  of  the  select  committee — evasions  might  be  practised  un- 
der it ;  but  he  did  not  despair  that  that  enlightened  House  might  add 
some  provisions  which  would  be  satisfactory.  When  the  proposi- 
tion of  the  gentleman  from  Pittsfield  was  before  the  committee,  he 
did  not  hesitate  to  reject  it  ;  the  object  of  it  was  to  expunge  the 
third  article.  Another  proposition  had  been  made  by  the  gentleman 
from  Beverly.  This  was  better  than  the  proposition  of  the  gentle- 
man from  Pittsfield.  but  this  would  weaken  and  destroy  the  effects 
of  the  third  article.  He  would  not  give  up  that  article  on  any  ac- 
count. It  would  be  better  for  them  to  have  a  millstone  hung  round 
their  necks,  and  be  cast  into  the  deep,  than  to  give  up  the  third 
article.  He  did  believe  that  the  proposition  of  the  select  committee 
might  be  modified,  so  as  to  give  full  security  for  the  support  of  public 
worship,  and  for  liberty  of  conscience. 

Mr.  J.  Phillips  of  Boston  said  he  was  in  favor  of  the  proposition 
of  the  gentleman  from  Concord.  He  considered  it  as  in  the  nature 
of  a  motion  for  an  indefinite  postponement.  He  said  that  for  forty 
years  no  great  evils  had  existed  under  the  third  article,  was  evident 
from  the  little  excitement  with  respect  to  calling  the  Convention  ;  and 
as  there  was  so  much  discordancy  in  opinions,  it  was  well  to  remember 
the  adage,  when  you  know  not  what  to  do,  take  care  not  to  do  you 
know  not  what.  He  hoped  they  should  not  resemble  the  man  who 
had  the  epitaph  on  his  tombstone,  "I  was  well  :  I  would  be  better, 
and  here  I  am." 

Mr.  Leonard  of  Sturbridge  did  not  agree  that  the  Constitution 
was  ambiguous,  though  it  may  not  have  carried  into  effect  the  in- 
tention of  its  framers.  He  thought  the  third  article,  together  with 
the  law  of  1811,  did  not  afford  a  shield  for  the  rights  of  conscience. 
He  was  glad  to  hear  that  the  time  was  come  for  religious  freedom. 
In  an  election  sermon  an  hundred  years  ago,  to  sanction  an  untruth 
by  toleration,  was  viewed  as  an  attempt  to  batter  the  Almighty  from 
his  chair.  Toleration  had  advanced  greatly  within  the  last  forty 
years.  He  asked,  what  was  the  difference  between  a  man's  sup- 
porting any  heresy,  and  supporting  the  one  he  does  not  wish  to  sup- 
port. He  held  it  indispensable  that  the  people  should  be  directed 
in  virtue,  but  the  founder  of  our  religion  did  not  command  us  to 
give  up  inalienable  rights.  He  would  not  say  that  the  language  of 
the  third  article  was  Machiavelian,  but  he  would  say  it  was  ambig- 
uous, and  he  wanted  it  made  intelligible. 

Mr.  Holmes  of  Rochester  said  that  before  the  statute  of  IS  11  the 
construction  of  the  constitution  was  such,  that  no  person  could 
draw  out  of  the  treasury  of  any  society  the  taxes  paid  by  a  member 
of  another  society,  unless  that  society  was  incorporated.  The 
Quakers,  who  were  a  fortieth  part  of  the  people  of  the  Common- 


422  MASSACHUSETTS    CONVENTION. 

wealth,  were  liable  to  pay  taxes  in  the  Congregational  parishes 
where  they  resided,  and  were  besides  obliged  to  support  their  own 
teachers.  It  was  the  same  with  unincorporated  societies  of  all 
other  denominations.  This  incapacity  of  unincorporated  societies 
to  claim  the  taxes  paid  by  their  members  was  removed  by  the  law 
of  1811.  But  that  law  may  be  repealed.  It  was  said  that  we  were 
safe  in  the  hands  of  the  Legislature.  He  considered  it  a  correct 
maxim  that  the  argument  that  proves  too  much  proves  nothing  at 
all.     If  the  argument  was  good,  no  constitution  was  necessary. 

Mr.  Stowell  of  Peru  rose  only  to  reply  to  a  remark  of  the  gen- 
tleman last  speaking.  He  said  that  before  the  law  of  1811,  the 
Quakers  and  persons  of  other  denominations  were  liable  to  be  taxed 
and  could  not  get  their  money  for  the  support  of  their  own  teachers. 
That  was  not  the  operation  of  the  article.  He  understood  that  those 
who  provided  for  the  support  of  public  worship  in  other  ways  were 
not  taxed  at  all,  and  consequently  no  provision  was  necessary  for 
drawing  money  from  the  town  and  parish  treasuries. 

Mr.  Baldwin  of  Boston  was  anxious  to  make  a  few  remarks. 
He  had  kept  his  ears  open  during  the  debate  and  had  listened  with 
all  the  attention  in  his  power.  He  had  heard  on  one  hand  many 
complaints  of  oppression  from  the  operation  of  the  third  article,  and 
on  the  other  side  gentlemen  had  attempted  to  wink  them  out  of 
sight,  and  to  represent  them  as  incidental  inconveniences  to  which 
every  institution  is  liable.  He  believed  that  these  incidental  in- 
conveniences had  always  been  in  favor  of  the  predominant  sect. 
He  thought  it  was  the  opinion  of  the  Convention  that  provision 
should  be  made  that  every  man  should  have  a  right  to  worship 
where  he  pleased,  and  not  to  pay  where  he  did  not  worship.  But 
this  right  was  not  secured.  He  had  heard  the  other  evening  with 
great  pleasure,  the  eloquent  argument  of  the  gentleman  from  Salem, 
on  the  excellence  of  religion,  but  he  wasted  his  arrows  in  the  air. 
Everybody  agreed  with  him  in  respect  to  the  value  and  importance 
of  religion.  The  question  was,  how  religion  could  be  best  sup- 
ported. He  alluded  to  the  remarks  of  his  reverend  colleague  the 
other  day — he  had  known  him  thirty  years,  and  had  always  respect- 
ed his  learning  and  talents.  But  he  confessed  he  did  not  know 
what  denomination  he  belonged  to.  He  said  that  he  was  half  a 
Quaker,  but  he  had  not  heard  him  raise  his  voice  against  the  obli- 
gation to  bear  arms,  and  he  suspected  that  he  had  overrated  his 
Quaker  sentiments.  He,  (Mr.  B.)  was  in  favor  of  the  resolutions 
proposed  by  the  gentleman  from  Beverly.  He  was  willing  that 
parishes  should  have  power  to  tax  all  persons  within  their  limits 
who  are  not  enrolled  in  any  other  society ;  but  he  could  not  agree 
to  the  resolution  to  restore  the  old  regulation.  He  reminded  gen- 
tlemen of  the  days  of  Solomon,  a  period  of  unusual  prosperity— 
when  his  son  came  to  the  throne  the  people  came  to  solicit  relief 
from  their  burdens.  The  young  king  took  the  advice  of  the  old 
men,  who.  recommended  to  him  to  ease  the  burdens  of  his  people — 
but  the  young  men  advised  him  to  the  contrary.     He  followed  the 


MASSACHUSTTS    CONVENTION.  423 

injudicious  advice  of  the  young  men — and  what  was  the  result  ? 
The  ten  tribes  revolted,  and  never  returned  to  their  allegiance.  He 
referred  to  the  origin  of  the  American  revolution  for  an  example  of 
the  ill  consequences  of  not  listening  to  the  well  founded  complaints 
of  the  people.  He  referred  also  to  the  recent  example  of  Connecti- 
cut. Year  after  year  the  Episcopalians  and  other  sects  came  up 
and  said,  ease  something  of  our  burdens.  The  request  was  con- 
stantly refused.  The  result  has  been  such  a  revolution  that  all  are  set 
at  liberty.  There  are  few  towns  in  the  Commonwealth  in  which 
the  new  societies  formed  are  equal  to  the  original  parish.  The 
regulation  therefore  does  not  operate  equally.  He  was  willing  that 
all  who  do  not  belong  to  other  societies  should  be  taxed  in  the  reg- 
ular parish.  But  he  wished  to  be  on  the  same  level  with  his  fellow 
Christians.  He  said  that  the  law  of  1811  furnished  a  security  for 
all  that  he  wanted,  but  he  knew  that  attempts  had  been  made  to 
repeal  it.  He  was  sensible  that  it  gave  general  relief.  He  did  not 
know  of  any  instance  of  injustice  since. 

Mr.  Lincoln  of  Boston  begged  the  indulgence  of  the  committee 
for  a  single  moment  only.  He  had  before  stated  explicitly  that  he 
had  no  personal  interest  in  the  question.  He  only  wished  that  per- 
sons in  the  country  might  have  the  same  advantages  that  he  had  in 
town.  He  had  not  known  personally  of  many  inconveniences. 
But  if  gentlemen  would  appeal  to  the  records  of  the  courts  of  jus- 
tice and  of  the  Legislature,  it  would  be  found  that  great  incon- 
veniences had  arisen.  He  respected  the  openness  and  frankness  of 
the  gentleman  from  Concord  who  moved  the  resolutions.  He  was 
entitled  to  much  commendation  for  his  frankness.  He  admitted 
that  the  law  of  1811  might  be  repealed,  and  hoped  that  it  would  be 
repealed,  or  at  least  thought  that  the  law  was  a  very  bad  one.  He 
(Mr.  L.)  hoped  that  the  inference  would  not  be  drawn  from  any- 
thing which  he  had  said  that  he  was  unfriendly  to  the  interests  of 
religion.  He  considered  the  prosperity  of  the  Commonwealth  in- 
separably connected  with  it.  He  was  disposed  to  treat  with  con- 
tempt a  parsimonious  disposition  towards  the  ministers  of  the  gospel. 
They  were  the  most  important  class  of  men,  and  those  who  gave 
liberal  support  to  them  most  directly  consult  their  own  happiness 
and  that  of  the  community.  But  he  preferred  calling  on  the  better 
feelings  of  men  to  resorting  to  the  aid  of  the  law.  He  was  pained 
to  hear  the  maintenance  of  religious  worship  compared  with  the 
support  of  public  highways  ;  it  encouraged  a  parsimonious  spirit  to 
send  a  tax  bill  for  the  support  of  highways  and  one  at  the  same 
time  for  the  support  of  religion.  A  vulgar  comparison  of  this  sort 
tended  to  prevent  men  from  giving  a  liberal  support  to  their  religious 
teachers.  It  had  long  been  his  opinion  that  there  had  been  no  great 
cause  of  complaint  under  the  law  of  1811.  He  wished  it  was  incor- 
porated in  the  constitution,  that  it  might  be  permanent.  He  pro- 
ceeded to  make  some  remarks  on  the  proposition  of  the  gentleman 
from  Beverly,  and  to  explain  its  operation,  which  he  thought  would 
meet  the  object  which  the  gentleman  must  have  in  view  of  giving 


424  MASSACHUSETTS    CONVENTION. 

every  liberty  to  a  free  exercise  of  conscience,  and  all  necessary  sup- 
port to  religious  worship. 

Mr.  Low  of  Beverly  wished  gentlemen  would  remember  that  Bos- 
ton was  called  the  cradle  of  liberty,  and  he  hoped  it  might  still  be 
called  so. 

Mr.  Saltonstall  said  as  the  gentleman  had  alluded  to  the  resolu- 
tions of  the  gentleman  from  Beverly,  he  could  not  suffer  the  ques- 
tion to  be  taken  without  a  few  remarks  in  reply.  The  first  of  those 
resolutions  will  go  actually  to  incorporate  in  six  lines  all  the  relig- 
ious societies  in  the  Commonwealth.  It  gives  them  all  the  power  to 
raise  moneys  in  any  way  they  choose,  to  support  public  worship,  to 
erect  churches,  to  support  teachers,  and  for  other  purposes.  Gentle- 
men do  not  wish  for  the  aid  of  law,  but  in  this  indirect  way  they 
would  make  all  their  societies  legal  corporate  towns.  The  gentle- 
man from  Boston  had  said  that  the  cases  of  inconvenience  com- 
plained of  were  winked  out  of  sight.  Ten  or  fifteen  cases  had  been 
named  for  the  last  forty  years ;  none  of  them,  by  the  confession  of 
that  gentleman,  within  the  last  ten  years.  How  were  they  winked 
out  of  sight !  They  were  allowed  all  their  due  weight.  But  they 
were  fewer  beyond  comparison  than  might  have  been  expected. 
They  were  the  grievances  that  had  arisen  in  the  Commonwealth  for 
forty  years,  while  the  District  of  Maine  was  a  part  of  the  Common- 
wealth, in  the  operation  of  this  article  upon  nearly  a  million  of  peo- 
ple. Under  what  part  of  the  constitution  had  fewer  abuses  arisen  ? 
Elections  were  required  to  be  holden  on  the  first  Monday  of  April, 
and  all  persons  with  certain  qualifications  were  entitled  to  vote. 
But  many  abuses  had  proceeded  from  the  exercise  of  this  right — 
many  law  suits  had  arisen.  But  should  we  say  for  that  reason  that 
the  annual  elections  should  be  abolished  ?  It  was  said  that  the 
hard  cases  were  all  on  one  side.  He  might  have  related  cases 
known  to  gentlemen  who  had  taken  part  in  the  debate,  in  which 
thirty  or  forty  persons  had  gone  off  from  regular  parishes  and  come 
back  with  certificates  which  cost  but  twenty-five  cents  each,  which 
excused  them  from  the  payment  of  their  parish  taxes.  The  consti- 
tution as  it  is,  secures  perfectly  the  rights  of  conscience.  How  is  it 
possible  for  the  Legislature  to  provide  for  the  support  of  public 
worship,  and  have  no  power  to  make  laws  for  carrying  the  provis- 
ion into  effect. 

Mr.  Wilde  rose  (amidst  confused  and  importunate  cries  for  the 
question)  to  call  the  attention  of  the  committee  to  the  precise 
question.  It  had  not  been  clearly  stated  and  fully  explained.  The 
question  was,  whether  we  should  substantially  incorporate  into  the 
constitution  the  law  of  1811.  It  had  been  stated  by  almost  every 
gentleman  who  had  spoken  on  the  subject  that  it  provided  amply 
and  fully  for  all  the  inconveniences  which  had  arisen  under  the 
constitution.  The  reason  why  it  should  stand  on  the  footing  of  a 
law,  was,  that  if  incorporated  into  the  constitution,  so  that  it  could 
not  be  altered  or  modified,  it  would  lead  to  abuses.  What  would 
there  be  to  prevent  twenty  profligate  men  with  a  contempt  for  re- 


MASSACHUSETTS    CONVENTION.  425 

ligion,  from  coming  together  under  the  form  and  name  of  a  religious 
society  for  the  purpose  of  evading  their  obligation  to  support  re- 
ligious worship  ?  Was  it  right  to  restrain  the  Legislature  for  all 
future  ages  from  making  such  modifications  of  the  law  as  abuses 
under  it  might  show  to  be  proper  ?  It  was  not  to  be  supposed  that 
any  alteration  would  be  made,  unless  on  account  of  abuses  that 
might  arise. 

Mr.  Martin  rose,  and  was  interrupted  for  some  time  by  impatient 
calls  for  the  question.  He  spoke  however  for  some  time  against  the 
resolution,  but  we  were  not  fortunate  enough  to  catch  the  course  of 
his  argument. 

Mr.  Webster  moved  that  the  committee  should  rise  and  report 
progress.     The  motion  was  negatived. 

Mr.  Williams  of  Beverly  obtained  the  floor.  He  presumed  he 
had  a  right  to  address  the  committee  on  this  occasion,  and  that  the 
right  would  not  be  denied  him.  Before  he  proceeded  on  his  argu- 
ment, he  gave  way  to  a  renewal  of  the  motion  by  Mr.  Webster, 
that  the  committee  should  rise.  The  motion  was  agreed  to,  196  to 
141.  The  chairman  reported  progress,  and  the  committee  had  leave 
to  sit  again. 

At  seven  o'clock  the  Convention  adjourned. 


Wednesday,  December  27. 

The  Convention  met  and  attended  prayers  offered  by  the  Rev. 
Mr.  Palfrey.     The  journal  having  been  read, 

Mr.  Varnum  laid  on  the  table  a  resolution  proposing  to  amend  the 
seventeenth  section  of  the  second  chapter  of  the  rules  and  orders  of 
the  Convention,  by  rescinding  the  words  "  but  a  question  to  strike 
out  and  insert,  shall  be  deemed  indivisible." 

The  following  gentlemen  were  appointed  on  the  committee 
ordered  yesterday  to  draw  up  an  address  to  the  people  to  accompa- 
ny the  amendments  submitted  for  their  adoption  or  rejection,  viz.  : 
Messrs.  Sullivan  of  Boston,  Lyman  of  Northampton,  Fisher  of 
Westborough,  Lawrence  of  Groton,  and  Bangs  of  Worcester. 

On  motion  of  Mr.  Dana  the  House  resolved  itself  into  a  commit- 
tee of  the  whole  on  the  unfinished  business  of  yesterday,  Mr.  Var- 
num in  the  chair. 

The  resolution  proposed  yesterday  by  Mr.  Hoar  being  read, 

Mr.  Williams  of  Beverly  said  he  presumed  it  would  be  in  order 
to  bring  the  resolution  which  he  had  submitted  so  far  into  consid- 
eration as  to  contrast  them  with  the  third  article,  with  the  report  of 
the  select  committee,  and  with  the  resolutions  now  under  consid- 
eration. 

Mr.  Lawrence  said  that  the  gentleman  seemed  to  think  that  the 
course  which  had  been  taken  in  entering  on  the  consideration  of  the 
resolution  now  before  the  committee,  before  that  which  he  had  sub- 
mitted, deprived  him  and  his   friends  of  an  advantage  in  the  dis- 
54 


426  MASSACHUSETTS    CONVENTION. 

cussion  which  they  were  entitled  to.  He  therefore,  having  voted 
in  the  majority  on  the  question  for  taking  into  consideration  the 
resolution  of  the  gentleman  from  Concord,  moved  to  reconsider 
the  vote. 

Mr.  Hoar  acceded  to  the  motion.  He  should  be  exceedingly  un- 
willing to  prevent  or  impede  the  full  discussion  of  any  project  which 
should  have  for  its  object  the  rendering  the  operation  of  the  third 
article  less  objectionable. 

Mr.  D wight  of  Springfield  hoped  the  motion  would  not  prevail. 
Having  gone  fully  into  the  discussion,  and  gentlemen  having  had 
an  opportunity  in  a  great  measure  to  make  up  their  minds  on  the 
question,  and  being  pressed  for  time,  he  hoped  it  would  be  consid- 
ered that  other  gentlemen  have  rights  as  well  as  those  who  press 
these  amendments. 

Mr.  Flint  hoped  the  vote  would  not  be  reconsidered,  but  wished 
the  gentleman  from  Beverly  might  be  indulged  in  a  comparison  of 
his  own  motion  with  that  before  the  committee. 

The  motion  for  reconsideration  was  agreed  to,  132  to  91. 
The  third  resolution  of  the  select  committee  then  came   again 
under  consideration. 

Mr.  Williams  observed  that  the  committee  had  inserted  the 
words  "incorporated  or  unincorporated"  ;  had  substituted  the  word 
"  Christian"  for  "  protestant,"  and  had  struck  out  that  part  which 
gave  to  the  Legislature  power  to  enjoin  attendance  on  public  wor- 
ship, and  he  would  now  give  his  reasons  in  favor  of  the  article,  so 
amended.  He  agreed  with  gentlemen  who  were  for  retaining  the 
article,  in  all  their  zeal  for  the  support  of  religious  worship.  He 
wished,  as  well  as  they,  to  preserve  religion  for  posterity,  but  he 
wished  to  transmit  it  to  them,  without  shackles,  and  without  unnec- 
essary freedom.  He  approved  of  the  injunction  contained  in  the 
article  for  the  support  of  public  worship.  He  should,  it  was  true, 
prefer  to  strike  out  a  few  words,  but  since  this  was  not  possible,  he 
was  willing  to  take  it  as  it  is,  and  hoped  it  would  prevail. 

The  question   on  the  adoption  of  the  third  resolution  was  then 
taken,  and  decided  in  the  affirmative — 200  to  54. 
The  fourth  resolution  was  then  read. 

Mr.  Williams  moved  to  amend  by  striking  out  the  fourth  resolu- 
tion, and  inserting  the  following  : 

Resolved,  That  every  religious  society,  incorporated  or  not  incorporated,  shall  have 
power  to  raise  moneys  for  the  support  of  their  respective  teachers,  and  incidental  ex- 
penses, in  such  manner  us  they  shall  determine  by  the  vote  of  a  majority  of  the  legal 
voters  assembled  at  any  meeting,  warned  and  held  according  to  law. 

And  every  person  shall  have  and  enjoy  the  full  liberty  of  uniting  with,  and  paying 
to  the  support  of,  whatever  religious  society  he  may  choose,  within  the  limits  of  this 
Commonwealth,  whether  incorporated  or  not.  And  every  person  neglecting  to  unite 
himself  with  some  religious  society  for  the  purposes  aforesaid,  shall  be  classed  with 
the  parish  or  precinct  in  which  he  may  reside,  and  shall  be  liable  to  be  taxed  by  the 
same. 

And  every  denomination  of  Christians,  demeaning  themselves  peaceably,  and  as 
good  subjects  of  the  Commonwealth,  shall  be  equally  under  the  protection  of  the 
law;  and  no  subordination  of  any  sect  or  denomination  to  another,  shall  ever  be 
established  by  law. 


MASSACHUSETTS    CONVENTION.  427 

Mr.  Parker  of  Boston  rose  at  the  request  of  the  gentleman  from 
Quincy,  who  was  unavoidably  absent,  to  propose  that  in  the  third 
article  of  the  declaration  of  the  bill  of  rights,  the  words  "all  men 
.of  all  religions,  demeaning  themselves  as  good  subjects,  shall  enjoy 
the  equal  protection  of  the  laws  "  should  be  inserted,  instead  of  the 
words  "men  of  every  denomination  of  Christians." 

Mr.  Williams  had  no  special  objection  to  this  proposition,  but  did 
not  think  it  would  meet  the  wishes  of  the  people  of  this  Common- 
wealth. 

Mr.  Parker  withdrew  the  proposition. 

Mr.  Williams  said  he  wished  every  guard  to  be  placed  around 
religion  which  was  warranted  by  its  great  author.  His  proposition 
would  obviate  many  objections  that  had  been  felt  to  the  constitution 
as  it  stood.  He  thought  the  report  of  the  select  committee  was 
liable  to  the  same  objections  as  the  constitution.  His  first  resolu- 
tion was  to  give  every  society  power  to  raise  money.  To  oblige 
people  to  submit  to  having  taxes  collected  by  those  of  another  de- 
nomination was  putting  them  in  a  state  of  subordination.  He 
thought  his  proposition  would  point  out  a  plain  path  which  every 
one  might  walk  in.  It  had  been  said,  that  the  effect  of  it  would  be 
to  incorporate  at  once  a  great  number  of  societies — he  admitted  it. 
But  it  would  not  be  to  all  the  purposes  for  which  they  would  be 
incorporated  by  an  act  of  the  Commonwealth.  That  incorporated 
them  in  detail,  and  points  out  particular  powers  and  duties,  while 
his  proposal  only  made  them  corporations  for  a  particular  pur- 
pose, that  they  should  raise  money  for  any  purpose  they  might  re- 
quire. This  he  thought  was  the  spirit  of  the  third  article,  to  secure 
to  the  whole  community  sufficient  sums  of  money  for  the  support 
of  public  worship.  It  had  been  said  fthat  few  cases  of  grievance 
had  been  related.  This  was  true — but  many  might  be  named  ;  it 
would  take  days  to  relate  them,  and  it  would  do  no  good.  It  had  been 
said  that  there  had  been  no  grievances  since  the  law  of  1811 — one 
was  mentioned  last  evening,  and  a  gentleman  in  the  county  of  Mid- 
dlesex, only  two  years  since,  had  been  taxed  in  a  town  where  he 
did  not  belong.  It  is  true,  to  be  sure,  that  after  going  through  two 
courts  he  obtained  his  money  back  again.  Mr.  W.  said,  he  did  not 
speak  in  reference  to  his  own  particular  denomination,  but  for  others, 
for  posterity — he  wished  all  to  stand  on  precisely  the  same  grounds. 
He  wished  people  should  have  the  power  of  going  from  one  society 
to  another  of  the  same  denomination.  The  law  made  no  provision 
for  this,  and  the  privilege  could  not  be  obtained  but  at  the  expense 
and  trouble  of  a  special  law.  Beside,  the  law  of  1811  might  be  re- 
pealed, and  where  shall  we  stand  when  it  is  repealed?  He  had  no 
favor,  no  fellowship,  or  affection  for  the  man  who  would  screen 
himself  from  just  taxation  by  joining  a  society  where  taxes  are  not 
imposed  by  law.  He  believed  many  pay  by  voluntary  subscriptions 
more  than  they  would  if  subject  to  taxation.  He  thought  this  prop- 
osition was  not  liable  to  the  equivocation  and  uncertainty  which  the 
article  was  now  liable  to.     It  would  put  all  on  the  same  footing  of- 


428  MASSACHUSETTS    CONVENTION. 

equality — it  embraced,  he  thought,  the  whole  spirit  of  the  constitu- 
tution,  the  principles  for  which  gentlemen  contended.  Whether  it 
should  prevail  or  not,  he  was  satisfied  with  having  an  opportunity 
of  presenting  it  and  stating  his  views. 

Mr.  Rantoul  of  Beverly  said  he  had  heard  principles  now  ad- 
vanced by  his  colleague  with  which  he  entirely  coincided.  He  un- 
derstood him  to  say  that  it  is  the  spirit  of  the  constitution  that  public 
worship  should  be  supported  by  a  general  tax  upon  the  community. 
If  these  were  the  views  of  the  gentlemen  who  acted  with  him,  he, 
(Mr.  R.)  should  find  no  difficulty  in  agreeing  with  them. 
Mr.  Williams  explained. 

Mr.  Rantoul  was  in  favor  of  retaining  the  resolve  of  the  select 
committee  in  preference  to  the  proposition  of  his  colleague.  He 
thought  it  contained  all  the  principles  which  he  had  laid  down,  and 
all  those  which  we  ought  to  retain.  He  thought  the  effect  of  that 
gentleman's  proposition  was,  that  all  unincorporated  societies  should 
be  incorporated  and  obliged  to  raise  moneys  for  the  support  of  public 
worship.  But  he  thought  these  societies  could  not  be  obliged  to  do 
this  without  their  consent.  He  thought  the  details  should  be  left 
to  be  arranged  by  the  Legislature  :  otherwise  abuses  would  be  likely 
to  arise. 

Mr.  Parker  of  Boston  was  happy  that  they  were  approximating 
to  the  same  point  in  this  debate.     His  sentiments  in  relation  to  the 
third  article  were  well   known,  but  it  was,  perhaps,  not   so  well 
known  that  he  was  willing  to   do  anything  to  accommodate  it  to 
the  views  of  every  class  of  persons  as  far  as  it  could  be  done  con- 
sistently with  preserving  the  essential  principle  itself.     He  consid- 
ered the  views  of  the  Convention  as  fully  expressed  in  favor  of  a 
legal  provision  for  the  support  of  public  worship.     It  was  now  only 
necessary  to  determine  in  what  manner  that  should  be  done,  con- 
sistently with  the  rights  of  individuals  to  worship  in  the  form  they 
please.     A   difficulty  had  arisen  under  the  constitution  from  an  am- 
biguity in  the  meaning  of  a  religious  society.     He  believed  it  had 
been  decided  formerly  that  it  was  not  necessary  that  a  society,  to  be 
entitled  to  the  rights  conferred  by  the  constitution,  should  be  an  in- 
corporated society.     But  in   1810  it  was  decided  by  the   supreme 
judicial  court  that  an  unincorporated  society  did  not  come  within 
the  meaning  of  the  constitution  to  entitle  the  teacher  to  demand  the 
money  paid  by  any  of  its  members  to  the  treasurer  of  the  parish  in 
which  he  resided.     It  could  not  be  a  public  society  without  being 
incorporated,  yet  probably  the  framers  of  the  constitution  did  not 
expect  that  this  would  be  the   construction  which  would  be  put 
upon  it.     He  apprehended  that  this  was  the  ground  of  nearly  all  the 
inconveniences  which  had  arisen.     This  was  the  cause  of  so  many 
petitions  to  the  Legislature,  and  to  this  might  be  attributed  the  law 
of  1811.     There  were  many  persons  who  believed  that  this  law 
was  unconstitutional.     But  the  court,  on  looking  into  the  subject, 
were  unanimously  of  opinion  that  the  Legislature  had  the  power 
and  might  extend  the  privilege.     He  therefore  considered  the  law 


MASSACHUSETTS     CONVENTION.  429 

of  1811  as  valid,  and  that  it  was  an  ample  remedy.  .But  a  further 
difficulty  arose.  This  is  but  a  law  and  may  be  repealed.  He  was 
not  surprised  that  gentlemen  wished  to  place  the  matter  upon  con- 
stitutional ground.  There  may  be  a  change  in  public  sentiment 
and  the  law  may  be  repealed.  Two  great  principles  had  been  es- 
tablished, and  were  acquiesced  in  by  every  part  of  the  house — that 
the  Legislature  shall  have  power  to  provide  for  the  support  of  public 
worship,  and  that  individuals  shall  be  at  liberty  to  worship  in  the 
manner  they  please.  The  only  difficulty  was,  in  carrying  these 
principles  into  effect.  Some  who  were  opposed  to  the  report  of  the 
select  committee  are  desirous  of  incorporating  into  the  constitution 
the  law  of  1811.  On  the  other  hand  it  was  objected  that  this  law, 
if  made  a  part  of  the  constitution,  would  be  liable  to  great  abuses. 
A  person  having  joined  any  society  and  obtained  the  certificate  of  a 
committee  of  such  society,  would  be  exempted  from  taxation  in  the 
parish  in  which  he  resides.  He  appealed  to  gentlemen  in  favor  of 
this  course,  if  it  would  not  be  liable  to  great  abuses.  A  society  of 
five  persons  might  be  formed  for  the  purpose  of  evading  the  parish 
tax.  Frauds  would  be  committed  which  could  not  be  prevented  by 
judicial  investigation.  Being  once  in  the  constitution,  whatever 
might  be  the  abuses,  they  could  not  be  remedied  by  the  Legislature. 
The  proposition  of  the  gentleman  from  Beverly,  recognized  the  right 
of  all  religious  societies  to  levy  taxes  for  the  support  of  public  wor- 
ship, and  made  them  corporations  for  certain  purposes,  and  allowed 
all  persons  who  did  not  unite  themselves  to  some  society,  to  be 
taxed  in  the  parish  where  they  resided.  This  had  a  great  appear- 
ance of  fairness,  but  was  it  of  a  nature  to  cure  rather  than  to  increase 
the  difficulties  ?  He  would  say  nothing  of  its  incorporating  by  a  single 
act  four  or  five  hundred  parishes,  but  it  would  hold  out  a  lure  to  mem- 
bers of  parishes  formally  to  join  some  other  society  merely  to  avoid 
taxation,  and  without  the  intention  of  attending  worship,  in  such 
society.  It  allowed  any  individual  to  resort  to  any  society  through 
the  whole  extent  of  the  Commonwealth,  and  on  becoming  a  mem- 
ber, whether  he  attends  or  not,  it  exempts  him  from  being  taxed  in 
the  parish  where  he  resides.  Mr.  P.  apprehended  that  this  would  be 
the  effect,  and  that  it  would  set  the  whole  community  afloat.  With 
certain  modifications  to  guard  against  these  objections,  he  should  be 
willing  to  accede  to  the  proposition.  He  wished  to  have  it  provided 
that  a  person  to  be  entitled  to  exemption  in  a  parish  where  he  resided, 
should  belong  to  some  other  religious  society  in  which  he  usually 
attends  public  worship  and  contributes  towards  the  support  thereof. 
He  proposed  also  one  or  two  other  modifications  not  very  material. 
He  alluded  to  the  case  of  Howe  and  Adams,  where  a  minister  had 
been  employed  by  a  religious  society  to  administer  to  them  only 
one  week  in  four,  in  which  the  court  decided  that  it  was  a  society 
in  the  meaning  of  the  law  of  1811. 

Mr.   Flint  of  Reading  and  Mr.  Richardson  of  Hingham,  spoke 
against  the  resolution. 

Mr.  Williams   then   accepted  the   modification  of  the  resolution 


430  MASSACHUSETTS     CONVENTION. 

proposed  by  him,  suggested  by  Mr.  Parker,  in  such  manner  that  the 
second  paragraph  should  read  as  follows  : 

And  every  person  shall  have  and  enjoy  the  full  of  liberty  of  uniting  with,  and  pay- 
ing to  the  support  of  whatever  religious  society  he  may  choose,  in  which  the  public 
worship  of  God  shall  be  maintained,  whether  incorporated  or  not,  provided  he  usually 
attends  public  worship  therein,  and  contributes  towards  the  expenses  thereof;  and 
every  person  neglecting  to  unite  himself  with  some  religious  society  for  the  purposes 
aforesaid,  shall  be  liable  to  be  taxed  for  the  support  of  public  worship  in  the  parish 
or  precinct  in  which  he  may  reside. 

Mr.  Dawes  of  Boston  rejoiced  at  the  prospect  of  a  reconciliation 
after  so  much  debate.     The   constitution  was  adopted  just  after  he 
left  the  law  office  of  one  of  its  principal  founders,  and  he  had  an 
opportunity  of  witnessing  the  anxiety  of  those  who  raised  this  bul- 
wark of  our  liberties.     He  had  not  forgotten  the  introductory  speech 
of  the  gentleman  who  is  now  the  oldest  member  of  this  Convention. 
That  speech  was  intended   to  reconcile  the  discordant  sentiments 
which  prevailed  in  gentlemen  from  different  parts  of  the  Common- 
wealth and  of  different  means  of  information.     Of  the  spirit  of  amity 
which   prevailed  in   the   Convention  of  1780  he  could  speak  with 
more  confidence.     He  was  one  of  the  twelve  gentlemen  chosen  from 
this  town  to  that  convention,  nine  of  whom  have  gone  to  render 
their  account,  and  he  must  soon  follow.     Those  gentlemen  were 
obliged  to  change  their  minds  as  light  beamed  upon  them  on  the 
various  subjects  discussed.      Even   Samuel   Adams,  who  was  re- 
markable for  the  inflexibility  of  his  opinions,  after  hearing  Fisher 
Ames'  speech  upon  the  biennial  election  of  members  of  Congress, 
got  up,  not  to  oppose  as  we  expected,  but  to  tell  us  that  he  was 
satisfied  with  the  reasons  which  had  been  given,  and  that  he  accorded 
entirely  with  Mr.  Ames.     This  conduct  in  such  a  man  as  Mr.  Adams 
had  a  great  effect  upon  the  other  members  of  the  Convention.     He 
(Mr.  D.)  had  not  got  rid  of  his  attachment  to  the  third  article.     He 
did  not  like  the  part  which  had  been  expunged,  but  the  rest  he  did 
like.     He  could  not  understand  the  motive  of  gentlemen  of  different 
sects  who  never  united  before,  in  uniting  now  against  this  article. 
This  induced  him  to  think  that  there  was  something  in  the  article 
which  they  could  not  get  over.     He  could  not  find  it,  but  he  was 
willing  to  yield  to  the  opinions  of  others.     He  came  to  sacrifice  his 
prejudices  and  he  would  agree  to  adopt  the  proposition  as  modified 
by  the  chief  justice. 

Mr.  Blake  of  Boston  said  that  having  had  the  honor  of  being  one 
of  the  select  committee  to  whom  had  been  referred  the  very  inter- 
esting subject,  of  which  a  portion  was  then  under  discussion  ;  and 
especially  in  the  absence  of  the  honorable  chairman  of  that  com- 
mittee, whose  head  and  whose  heart,  he  knew,  were  full  of  solici- 
tude on  that  subject,  he  felt  it  to  be  not  less  his  duty  than  his  priv- 
ilege, notwithstanding  the  then  protracted  state  of  the  discussion, 
to  submit  some  observations,  in  addition  to  those  which  had  been 
made  by  him  on  a  former  occasion,  relative  to  the  merits  of  the 
question  then  and  now  before  the  committee.     This  sense  of  duty 


MASSACHUSETTS    CONVENTION.  431 

was  the  more  imperative  upon  him,  on  account  of  the  very  unex- 
pected manner  in  which  it  had  been  the  pleasure  of  this  committee, 
(owing,  without  doubt,  to  a  supposed  necessity  of  an  inflexible  ad- 
herence to  strict  parliamentary  rules,  through  the  whole  course  of 
their  proceedings)  to  receive  and  to  treat  the  unfortunate  report  of 
the  select  committee  on  the  subject  of  the  provisions  contained  in 
the  third  article  of  the  constitution.  That  report,  said  Mr.  B.,  had 
been  literally  so  overlaid  and  smothered  by  the  numerous  and  va- 
rious propositions  of  amendments  and  substitutes  that  had  been 
heaped  upon  it,  that  its  merits  or  demerits,  whatever  they  might  be 
in  reality,  were  now  either  entirely  forgotten,  or  so  completely  over- 
looked, as  scarcely  to  have  been  adverted  to,  even  in  the  way  of 
argument,  during  the  long  and  tedious  debate  that  had  ensued,  since 
the  day  of  its  presentment  to  the  Convention. 

Gentlemen  might,  nevertheless,  be  assured,  said  Mr.  B.,  that  the 
report  of  the  select  committee,  especially  that  part  of  it  which  has 
reference  to  the  important  subject  embraced  by  the  third  article  of 
the  declaration  of  rights,  was  by  no  means  a  sudden,  inconsiderate 
expression  of  opinion.  On  the  contrary,  it  was  the  result  of  the 
most  anxious  reflection  and  deliberation  on  the  part  of  every  mem- 
ber of  that  committee,  who,  as  he  humbly  hoped,  were  not  entirely 
destitute  of  some  portion  of  that  forecast  and  intelligence  for  which 
the  generality  of  the  members  of  this  honorable  body  were  so  pre- 
eminently distinguished. 

The  truth  is,  said  Mr.  B.,  that  the  attention  of  the  committee  was 
devoted,  for  several  successive  days  and  nights,  and  even  weeks,  to 
the  consideration  of  the  important  matters  referred  to  in  the  third 
article  of  the  constitution ;  and  he  would  venture  to  assert,  that 
scarcely  a  proposition  had  been  introduced,  or  an  argument  urged, 
either  before  the  Convention,  or  the  committee  of  the  whole,  in  re- 
lation to  the  principal  subject,  which  had  not  been  previously  in- 
troduced, and  deliberately  weighed  and  considered  by  the  select 
committee.  Some  of  its  members  had  strenuously  contended  in 
favor  of  preserving  entire  all  the  essential  provisions  of  this  article, 
without  any  essential  change  or  amendment ;  others  were  in  favor 
of  expunging  the  whole  ;  and  others  were  the  advocates  of  such 
modifications  and  amendments,  as,  in  the  opinion  of  a  majority  of 
the  committee,  would  have  so  impaired  and  frittered  away  the  essen- 
tial principles  recognized  in  the  article,  as  to  have  rendered  the 
whole  entirely  inoperative.  There  was,  said  Mr.  B.,  an  inherent, 
intrinsic  difficulty  in  the  whole  subject.  On  the  one  hand,  the 
object  was  to  retain  in  the  constitution  everything  that  might  be 
requisite  to  ensure  protection  and  support  to  religious  institutions, 
which  were  deemed  to  be  so  essential  (in  the  language  of  the  con- 
stitution) to  the  "happiness  of  a  people,  and  to  the  good  order  and 
preservation  of  civil  government ; "  and  on  the  other  hand,  to  ab- 
stain from  any  regulation  in  regard  to  this  object,  which  could,  by 
possibility,  be  considered  an  infringement  upon  the  rights  of  con- 
science, or  upon  that  free  and  unrestrained  privilege  of  opinion  and 


432  MASSACHUSETTS    CONVENTION. 

action  on  religious  subjects,  which,  of  all  other  things,  seemed  to 
have  been  considered  most  sacred  by  the  enlightened  men  who 
were  the  framers  of  the  constitution. 

These  views,  which  at  the  first  presentment  of  the  subject  would 
seem  to  be  opposite  and  repugnant,  it  was  nevertheless  the  desire 
of  the  select  committee,  if  possible,  to  reconcile  ;  and  for  the  accom- 
plishment of  this  object,  they  had  even  flattered  themselves,  that 
the  mode  contemplated  in  their  report  was  open  to  as  little  excep- 
tion or  rejection  as  any  which  probably  could  be  devised.  Mr.  B. 
said  that  the  diversity  of  sentiment  which  had  been  manifested  in 
the  course  of  debate  on  this  subject,  before  the  committee  of  the 
whole,  had,  more  and  more,  confirmed  the  impressions  which  were 
on  his  mind,  as  to  the  correctness  of  the  views  of  the  special  commit- 
tee respecting  it ;  and  that  no  proposition  had  yet  been  submitted, 
which,  in  his  opinion,  would  be  likely  to  place  the  subject  on  a 
more  eligible  footing,  with  a  view  to  the  preservation  of  the  essen- 
tial principle,  and  the  reconciliation  of  all  contrarient  interests  and 
opinions,  than  that  suggested  by  the  report  of  the  select  committee. 

With  regard  to  the  specific  proposition  which  had  been  submitted 
by  the  reverend  member  from  Beverly,  and  which  was  then 
under  discussion,  Mr.  B.  said  that,  viewed  either  by  itself  and 
alone,  or  in  connection  with  the  proposed  amendment  that  had  been 
attached  to  it  on  motion  of  his  honorable  colleague,  the  chief  justice, 
it  was,  at  any  rate,  no  novelty  in  the  view  of  any  member  of  the 
special  committee.  A  similar  proposition,  and  one  stated  in  almost 
the  same  terms,  had,  some  weeks  since,  been  submitted  to  the  select 
committee  by  one  of  its  members ;  and,  after  the  most  deliberate 
consideration,  was  rejected,  as  having  a  tendency,  in  an  indirect 
manner,  entirely  to  frustrate  the  great  fundamental  principles  re- 
cognized in  the  article  in  question.  In  the  view  of  the  select  com- 
mittee, the  objection  to  the  principle  alluded  to  was,  that  the  words 
"  religions  society"  as  therein  employed,  seemed  to  be  susceptible 
of  no  fixed  and  certain  definition,  which  was  a  property,  of  all  oth- 
ers, most  desirable  in  a  constitutional  provision ;  that  it  might  very 
fairly  be  contended,  according  to  the  popular  sense,  that  wherever 
"  two  or  three  were  gathered  together"  they  should  be  deemed  to 
constitute  such  a  society,  for  religious  purposes,  as  would  be  suffi- 
cient to  afford  a  place  of  refuge  for  the  capricious  malcontents  of 
any  established  parish  ;  and  thus  to  open  wide  the  door  for  evasion  of 
all  the  regular  taxes,  intended  by  the  constitution  to  be  provided 
for  the  support  of  public  worship.  That,  according  to  the  import 
of  this  proposition,  everything  in  the  cases  therein  supposed  would 
be  left  in  the  custody  of  the  judicial  tribunals ;  to  all  the  doubts 
and  uncertainties  necessarily  incident  to  the  ordinary  course  of  trial 
by  jury  :  and,  in  fine,  that  a  principle,  a  leading  and  most  important 
one,  which  was  manifestly  intended  by  the  constitution  to  be  fixed 
and  determinate,  and  upon  the  preservation  of  which,  "  the  happi- 
ness of  the  people  and  the  good  order  and  peace  of  civil  govern- 
ment"  are  supposed  to  be  so  essentially  dependent,  would  be  left 


MASSACHUSETTS    CONVENTION.  433 

in  the  midst  of  doubts  and  uncertainty.  On  this  ground  it  was, 
said  Mr.  B.,  that  the  proposition  alluded  to  was  considered,  by  a 
large  majority  of  the  special  committee,  as  entirely  inadmissible, 
without  assenting,  at  the  same  time,  to  the  virtual  abandonment  of 
the  great  principle  so  explicitly  recognized  in  the  article  of  the  con- 
stitution which  has  been  mentioned.  Such,  said  Mr.  B.,  were  the 
views  of  the  select  committee  on  this  point ;  such  were  the  views 
he  had  himself  taken  of  the  subject ;  and  he  had  no  hesitance  in 
stating  that  they  had  not  been  changed  in  the  slightest  degree,  by 
any  arguments  he  had  heard,  on  the  other  side,  in  the  course  of  the 
debate.  It  had  been,  said  Mr.  B.,  the  particular  concern  of  the 
special  committee,  to  relieve  the  subject,  as  far  as  practicable,  from 
the  embarrassment  which  has  been  mentioned ;  and  they  had 
humbly  hoped  that  the  arrangements  proposed  in  the  fourth  article 
of  their  report,  might,  with  such  modifications  as  would  probably 
be  suggested  by  this  enlightened  assembly,  have  been  deemed  suf- 
ficient for  the  purpose — whether  they  were  too  sanguine  or  not,  in 
the  indulgence  of  this  expectation,  remains  yet  to  be  determined, 
after  that  part  of  the  report  which  has  been  alluded  to,  shall  have 
been  deliberately  discussed  and  considered. 

It  was  not,  however,  said  Mr.  B.,  with  a  view  of  entering  into  a 
minute  examination  of  the  details  of  the  precise  propositions  now 
before  this  committee,  or  of  its  relations  and  bearings  upon  the  prin- 
cipal question,  that  he  had  risen  upon  the  present  occasion.  His 
purpose  was,  as  he  believed,  of  a  higher,  and  in  his  view,  of  a  much 
more  important  nature.  He  was  aware,  indeed,  that  after  the  long 
and  elaborate  discussions  which  had  taken  place  before  this  com- 
mittee, for  several  days  past,  the  patience  of  members  must  have 
been  exhausted,  and  their  opinions  probably  have  been  made  up 
and  settled  with  regard  to  everything  connected  with  the  third  arti- 
cle of  the  declaration  of  rights.  From  the  course  of  the  debate,  and 
from  the  votes  which  had  been  passed  in  committee  on  that  sub- 
ject, there  seemed  to  be  but  little  doubt  as  to  what  would  be  their 
decision  of  the  question  now  before  them.  Still,  however,  as  the 
final  decision  upon  this,  and  upon  all  other  questions  connected 
with  the  subject  of  amending  the  constitution,  was  to  be  pronounced 
by  the  sovereign  people ;  and  as  the  members  of  this  Convention 
would  carry  with  them  among  their  constituents,  the  sentiments  and 
feelings  which  had  been  formed  here  as  to  the  several  subjects  which 
had  been  under  discussion,  it  could  never  be  too  late  for  any  mem- 
ber of  this  body  to  offer  suggestions  which  might  have  a  tendency 
to  allay  asperities,  and  to  correct  any  improper  prejudices  and  im- 
pressions which  were  so  likely  to  have  been  produced  by  the  very  e.v- 
traordinary  arguments,  in  relation  to  the  whole  subject  of  the  third 
article  of  the  declaration  of  rights,  that  were  urged  and  reiterated  by 
several  reverend  gentlemen,  and  other  members  of  this  committee,  at 
the  commencement  of  this  debate  :  arguments  which  had,  indeed, 
subsequently  been  made  to  yield  to  the  superior  force  of  reason  and 
truth,  but  whose  pernicious  effect  upon  the  minds  of  members, 
55 


434  MASSACHUSETTS    CONVEjSTIO^. 

might  not  yet,  perhaps,  have  been  entirely  counteracted.  It  had, 
said  Mr.  B.,  been  advanced  before  this  committee,  by  high  and  rev- 
erend authority,  and  the  position  had  been  defended  for  several  suc- 
cessive days,  with  a  degree  of  confidence  and  even  zeal,  which 
would  denote  conviction  of  its  truth,  that  the  provisions  of  the  third 
article,  in  so  far  as  they  go  to  enjoin  upon  the  citizen  any  pecuniary 
contribution  towards  the  support  of  public  teaching  of  piety,  religion, 
and  morality,  were  to  be  regarded  as  nothing  more  nor  less  than  a 
rule  founded  upon  tyranny  and  usurpation  ;  that  it  was  a  gross  and 
palpable  invasion  of  inalienable  rights,  and  a  violation  of  that  most 
sacred  of  all  rights,  the  right  of  conscience !  This,  said  Mr.  B.,  is 
a  pretty  high  and  grievous  imputation  upon  the  character  of  our 
present  frame  of  government,  as  well  as  upon  the  character  of  those 
who  were  immediately  concerned  in  its  formation,  and  it  ought  not 
therefore  to  be  passed  over  without  the  most  serious  and  deliberate 
consideration.  If  there  be  anything  in  the  constitution  of  Massa- 
chusetts which  wears  the  semblance  of  tyranny  and  oppression,  he 
would  beg  leave  to  inquire,  in  the  first  place,  who  were  the  tyrants 
and  oppressors?  Who  else  indeed,  said  Mr.  B.,  than  that  assem- 
blage of  most  enlightened  and  illustrious  patriots  who  were  the 
framers  of  the  instrument,  and  the  majority  of  that  high  minded 
and  patriotic  people  of  this  Commonwealth  who  had  seen  fit  to 
sanction  and  adopt  it.  Sir,  said  Mr.  B.,  I  hold  it  to  be  the  solemn 
duty  of  this  Convention,  and  of  every  individual  member  belonging 
to  it,  to  vindicate  the  character  of  their  predecessors,  the  Conven- 
tion of  1780,  from  so  foul  and  unfounded  an  aspersion.  I  hold  it  to 
be  the  solemn  duty  of  the  people,  and  of  ourselves  who  are  the  im- 
mediate representatives  of  the  people  of  the  present  day,  to  defend 
the  character  of  those  who  have  preceded  us,  from  the  reproach,  the 
foul,  indelible  reproach,  of  having,  under  any  imaginable  circum- 
stances, sanctioned  a  system  of  government,  under  which  the  sacred 
rights  of  conscience  could  be  holden  in  bondage,  or  which  should 
admit  of  any  possible  construction  whereby  the  inalienable  rights 
of  the  citizen  might  be  infringed  with  impunity.  For  ourselves 
also,  said  Mr.  B.,  we  have  something  to  do  in  the  way  of  vindica- 
tion. As  one  of  the  people,  he  could  not,  himself,  quietly  submit 
to  the  imputation  that,  for  more  than  forty  years  past  there  had  been 
lurking  at  the  very  foundation  of  our  social  compact,  a  principle  of 
injustice,  of  gross  inequality  as  to  the  rights  of  the  'citizen ;  of  op- 
pression, and  of  tyranny ;  and  yet,  that  for  a  series  of  years  we 
should  have  been  so  stupid  as  not  to  have  discovered  its  existence, 
or  so  tame  and  so  base,  as  not  to  have  uttered  a  single  murmur  or 
complaint  respecting  it.  For  the  special  committee,  even,  who  had 
been  particularly  charged  with  the  examination  of  this  subject,  and 
who,  for  many  successive  days  had  devoted  the  most  earnest  and 
anxious  attention  to  its  merits,  he  would  humbly  hope,  also,  that 
there  might  be  found  something  like  an  apology  for  that  dullness 
and  misapprehension  on  their  part,  which  are  implied  by  the  argu- 
ments of  gentlemen  on  the  other  side ;  and  that  this  honorable  body 


MASSACHUSETTS    CONVENTION.  435 

may  be  disposed,  so  far,  at  least,  to  countenance  the  proceedings  of 
that  committee,  as  to  admit,  that  if  there  be  in  that  part  of  the  con- 
stitution which  was  submitted  to  their  scrutiny,  any  principle  of  in- 
justice like  that  which  has  been  the  theme  of  so  much  complaint 
and  remonstrance,  it  is,  at  least,  not  quite  so  plain  and  glaring  as 
had  been  pretended ;  and  that  if  it  exist  at  all,  it  was  so  recondite, 
so  deeply  seated  in  the  constitution,  as  that  it  might  very  naturally 
elude  the  notice  of  common  and  ordinary  minds. 

But,  said  Mr.  B.,  if  there  be   any  provision  in  the  third  article  of 
the  declaration   of  rights,  which  savors,  as  has  been  asserted,   of 
bigotry  and    usurpation,  he  would  beg  leave  again   to   inquire    who 
were  the  bigots,  who  the  usurpers  ?     Who  are  the  men   to  be   de- 
nounced as  having  been  the  file  leaders  in  a  foul  conspiracy  against 
the  inalienable  rights  of  the  people,  the  sacred  rights  of  conscience  ? 
They  were  indeed  no  other  than  Samuel  Adams,  John  Adams,  that 
enlightened  and  venerable  patriot,   who  for  many  days  since  the 
assemblage  of  this  Convention,  was  in  the  midst  of  us,  mingling  in 
our  debates,  and  scattering  profusely  before  us  the  fruits  of  his  great 
wisdom  and  experience.     It   was,  said  Mr.  B.,  a  well  known  fact, 
that  the  former  of  these  most  distinguished  men  was  the  chairman 
of  the  committee,  who  were  appointed  in  behalf  of  the  convention 
who  formed  the  constitution  of  1780,  to  draw  up  an  address  to  their 
constituents,  for  the  purpose  of  stating  and  explaining  the  views  and 
principles  of  that  system  of  government  which  was  then  about  being 
submitted  to  the  consideration  of  the  people.     It  had  been  stated  to 
him,  said  Mr.  B.,  and  upon  such  authority  as  seemed  to  admit  of  no 
doubt  of  the  fact,  that  the  address  in  question  was  actually  drawn 
up  by  the  pen  of  the  venerable  and  most  highly  distinguished  indi- 
vidual last  referred  to  ;  and  as  the  sentiments  of  such  a  man  on  such 
a  subject,   or  indeed  on  any  subject  connected  with  the   rights   of 
man  and  the  principles  of  civil  liberty,  ought  perhaps  to  be  received 
as  having  almost  the  force  of  binding  authority,   he  presumed  he 
should  be  indulged  by  the  committee   in  calling  their  attention  to 
some  portion  of  that  celebrated  address.     Here  Mr.  B.  read  from  a 
pamphlet  several  passages  of  the  address,  noticing  more  particularly 
the  following,  as  having  an  immediate  reference  to  that    article  in 
the  declaration  of  rights,  which  was  then  under  discussion  before 
the  committee  :     "This  article,  says  the  address,  underwent  long 
debate,   and  took  time  in  proportion  to  its  importance  :  and  we  feel 
ourselves  peculiarly  happy  in  being  able  to  inform  you,  that  though 
the  debates  were  managed  by  persons   of  various  denominations,   it 
was  finally  agreed  upon  with  more  unanimity  than  usually  takes 
place  in  disquisitions  of  this  nature  :  we  wish  you   to  consider  the 
subject  with  candor  and  attention.     Surely  it  would  be  an   affront 
to  the  people  of  Massachusetts  Bay,  to  labor  to  convince  them  that 
the  honor  and  happiness  of  a  people  depend  upon  morality  :  and  that 
the  public  worship  of  God  has  a  tendency  to  inculcate  the  principles 
thereof,  as  well  as  to  preserve  a  people  from   forsaking  civilization, 
and  falling  into  a  state  of  savage  barbarity."     Such,    said  Mr.  B.,, 


436  MASSACHUSETTS    CONVENTION. 

were  the  sentiments  of  this  most  illustrious  man,  in  relation  to  the 
principal  subject  referred  to  in  that  article  of  our  constitution,  which 
in  this  assembly,  (but  on  no  other  occasion,  as  we  have  ever  heard,) 
has  been  the  subject  of  so  much  complaint  and  reprehension.    Such 
were  the  sentiments  of  a  man,  whose  piety  and  patriotism  were  coe- 
val and  coequal,  and  constituted  the  very  essence  of  his  character  ; 
who  in  regard  to  everything  connected  with  the  rights  of  man,  and 
the  liberties  of  his  country,  was  the  very  creature  of  jealousy ;  the 
child  and  champion  of  his  country's  cause.     The  man  indeed  who, 
like  the  dragon  of  the  Hesperides,  stood  by  the  trunk  of  the  tree  of 
liberty,  and  with  a  never  wearied,  never  sleeping  vigilance,  guarded 
its  precious  fruits  against  every  intruder.     It  was  to  be  remembered 
moreover,  said  Mr.  B.,  that  the  sentiments  alluded  to,  were  not  those 
of  an    individual  merely,   but  the  result  of  the  combined  wisdom 
and  intelligence  of  that  illustrious  assemblage  of  statesmen  and 
patriots  who  were  concerned  in   the  formation  of  our  constitution ; 
and  still  more  especially,  that  this  same  constitution,  tat  a  period 
too.  when  the  flame   of  civil  liberty  was  burning  in  all  its  primitive 
brightness  and    purity;    when   the  people  of  Massachusetts   were 
united  as  a  band  of  brothers  in  defence  of  their  natural  and  inalien- 
able rights  ;  was  sanctioned  and  adopted  by  the  community  with  a 
degree  of  unanimity  which  denoted  beyond  all  possible  doubt,  the 
general  acquiescence  in  all  the  principles  which  it  contained.     Who 
then,  said  Mr.  B.,  shall  have  the  confidence,  he  would  not  say  temer- 
ity, to  assert  at  this  day,  and  upon  the  authority  of  such  arguments, 
if  so  they  might  be  termed,  as  had  been  adduced  in  support  of  the 
position,  that  the  provisions  of  the  third  article,  or  any  other  pro- 
vision in  the  instrument,  had  been  founded  in  bigotry  and   supersti- 
tion, or  could  be  deemed  an  infringement  of  the  rights  of  conscience, 
or  of  any  other  fundamental  principle  of  civil   liberty  ?     The  sup- 
position was  monstrous,  and  carried  with  it  such  an  imputation  upon 
the  character  and  intelligence  of  our  revolutionary  patriots  as  could 
not  for  a  single  moment  be   endured  !     It  had  nevertheless  been 
distinctly  asserted,  in  the  course  of  the  debate  upon  the  provisions 
of  this  article  in  the  constitution,  that  they  were   an  invasion  upon 
the  inalienable  rights  of  the  citizen,  and  consequently  that  it  did  not 
belong  even  to  a  majority  of  the  people,  to  establish  any  such  regu- 
lation.    Upon  this  point,  said  Mr.  B.,   he  had  been  completely  an- 
ticipated by  the  arguments  of  gentlemen  who  had  preceded  him. 
He  would  however  in  general   terms,  take  the   liberty  to  remark 
that  not  only  the  honorable  member  from  Pittsfield,  but   all  others 
who  had  assisted  in  the  enforcement  of  his  propositions,  had  by  their 
concessions    completely    abandoned   the   ground  which  they  had 
originally  assumed  in  the  argument.     They   had  all  distinctly  ad- 
mitted the  soundness  of  the  two  first  propositions  which   are  laid 
down,  so  clearly,  in  the  article  alluded  to  ;  and  indeed  their  several 
proposals  of  amendment  had  in  every  instance  been  prefaced  by  a 
recital  in  totidem  verbis,   of  the  very  terms  in  which  those  proposi- 
tions are  stated  in  the  article  in  question.     It  resulted  then  of  course, 


MASSACHUSETTS    CONVENTION.  437 

as  the  only  point  to  be  settled,  what  are  the  rights  of  the  majority 
of  a  people,  in  regard  to  a  rule  which  is  essentially  necessary  to 
their  happiness,  and  to  the  good  order  and  preservation  of  that  civil 
government  which  was  the  first  and  only  object  of  the  social  com- 
pact. On  this  head  it  ought  to  be  the  subject  of  inquiry,  said  Mr. 
B.,  what  are  not,  rather  than  what  are  the  rights  of  a  majority  of  the 
sovereign  people.  Allowing  to  the  whole  people  but  the  mere  right 
of  self  preservation,  which  belongs  to  the  meanest  individual  in  so- 
ciety, and  is  superior  to  all  laws  and  all  restraints,  and  it  would 
follow,  of  course,  that  in  regard  to  whatever  might  be  "essential  to 
the  happiness  of  the  people,  and  to  the  preservation  of  their  govern- 
ment," they  had  the  right  to  do  anything  and  everything  but  the 
right  to  do  wrong.  It  is  nevertheless  admitted  that  even  a  majority 
of  the  people,  in  the  very  plenitude  of  their  sovereignty,  have  not 
the  right  to  establish  a  rule  of  government  which  shall  interfere 
with  the  rights  of  conscience,  or  any  other  right  which  can  properly 
be  classed  among  the  inalienable  rights  of  the  citizen  ;  and  it  there- 
fore remained  to  be  considered  only,  whether  there  be  anything,  in 
the  article  alluded  to,  that  could  fairly  be  construed  an  infringement 
of  these  rights.  Upon  this  point  also,  said  Mr.  B.,  the  arguments 
of  gentlemen  who  had  preceded  him,  were  a  complete  anticipation 
of  everything  he  could  have  suggested.  It  had  been  shown,  beyond 
the  power  of  contradiction,  that  Christianity  was  not  merely  that 
concern  between  the  creature  and  the  Creator,  which  would  be  likely 
to  be  injured  by  every  possible  interference  of  the  civil  authority, 
even  in  the  way  of  encouragement  and  protection  ;  that  it  was  a 
social  principle,  on  the  encouragement  and  protection  and  preserva- 
tion of  which  the  happiness  of  a  people,  and  all  their  nearest  and 
dearest  interests  and  concerns  in  society,  were  most  essentially  de- 
pendent. It  had  already,  said  Mr.  B.,  been  most  forcibly  illustrated 
before  this  committee,  and  he  would  not  attempt  to  give  any  addi- 
tional weight  to  the  sentiment,  that  this  religion  which  we  profess 
was  not  that  mere  solitary,  individual  concern  that  had  been  repre- 
sented. On  the  other  hand,  that  it  had  been  bestowed  by  its  great 
Author  on  man  not  only  as  an  individual,  but  as  a  member  of  civil 
society  ;  that  love  of  neighbor,  and  charity,  and  good  works  among 
men,  and  indeed  the  whole  code  of  moral  and  social  duties,  were 
plainly  inculcated  by  its  precepts.  If  then,  said  Mr.  B.,  the  princi- 
ples of  this  holy  religion  we  profess,  be  so  intimately  connected  with 
the  best  interests  and  welfare  of  civil  society,  how  shall  it  be  denied 
that  it  is  not  only  the  privilege,  but  the  duty  of  that  society,  by  all 
reasonable  and  lawful  means,  to  cherish  and  protect  them  ?  But, 
said  Mr.  B.,  another  objection  had  been  stated,  and  urged  with 
peculiar  emphasis  before  the  committee,  against  the  provision  of  the 
constitution  requiring  contribution  of  the  citizen  for  the  maintenance 
of  institutions  for  the  public  worship  of  God  !  It  had  been  contend- 
ed, and  for  several  successive  days  the  committee  had  been 
entertained  and  edified  also,  as  he  hoped,  by  a  series  of  sublime 
discourses  which  had  been   poured   down  upon  them  by  reverend 


438  MASSACHUSETTS    CONVENTION. 

gentlemen  and  others  from  various  quarters  of  the  house,  who  had 
risen  in  support  of  the  position,  that  the  constitutional  provision 
which  had  been  referred  to,  was  nothing  less  than  a  gross  and  palpa- 
ble infringement  of  the  sacred  rights  of  conscience.  Upon  this  topic, 
the  arguments  of  gentlemen  had  been  replete  with  unusual  warmth 
and  animation ;  and  ministers  of  the  gospel,  and  magistrates  and 
people,  had  been  invoked,  by  the  most  solemn  and  pathetic  appeals, 
to  bear  witness  that  the  constitution  of  Massachusetts — that  same 
constitution  to  which  we  had  been  so  much  attached,  and  under 
whose  benign  influence  and  protection,  for  more  than  forty  long 
years,  every  order  and  description  of  the  citizens  seemed  to  have 
been  so  contented  and  happy — had,  nevertheless,  perpetually  carried 
in  its  bosom  a  principle  of  insupportable  tyranny  and  oppression  ! 
The  position,  said  Mr.  B.,  was  a  pretty  bold  one,  and  was  deserving 
most  certainly  of  the  very  serious  consideration  of  this  committee. 
On  such  a  subject,  he  regretted  extremely  that  the  remarks  of  some 
gentlemen  in  the  course  of  the  debate  had  seemed  to  have  been 
addressed  rather  to  the  feelings  and  imagination  of  this  committee 
than  to  their  reason  and  understanding.  On  a  subject  of  so  much 
importance  and  solemnity,  it  was  certainly  desirable  that  reverend 
gentlemen  should  have  been  somewhat  exact  in  their  definitions 
and  reasonings.  On  no  subject,  so  much  as  on  that  which  relates 
to  the  rights  of  conscience,  was  the  mind  or  imagination  of  man  so 
apt  to  indulge  in  vain  and  extravagant  speculations.  The  truth  of 
this  remark  had  been  most  strikingly  exemplified  in  the  course  of 
this  debate.  Reverend  gentlemen,  in  their  discourses  and  appeals, 
had,  indeed,  soared  to  the  topmost  height  of  the  subject,  but  had 
disdained  to  look  at  the  real  principle  which  lies  at  the  bottom. 
What  then,  he  would  inquire,  were  the  real  meaning  and  significa- 
tion of  that  principle  which  had  been  so  earnestly  contended  for 
under  the  name  of  "  right  of  conscience  "  in  regard  to  matters  of 
religion  ?  If.  by  it,  were  intended  that  right  only  whereby  every 
citizen  of  the  Commonwealth  should  be  left  to  the  free  and  unlimit- 
ed enjoyment  of  his  opinions  and  will,  in  relation  to  everything 
immediately  connected  with  his  religion  ;  or  if,  to  adopt  the  lan- 
guage which  was  used  in  another  article  of  the  constitution  no  more 
was  intended  by  gentlemen  than  that  "  no  subject  of  the  Common- 
wealth should  be  molested  or  restrained,  in  his  person,  liberty,  or  estate, 
from  worshipping  God  in  the  manner  and  season  most  agreeable  to 
the  dictates  of  his  own  conscience  ;"  if  so  much,  and  nothing  more 
were  intended  by  the  arguments  of  gentlemen,  then,  said  Mr.  B.,  he 
was  quite  sure  there  was  not  a  member  of  that  committee,  not  an 
individual  in  the  Commonwealth,  who  could  be  disposed  to  ques- 
tion the  soundness  of  the  principle,  or,  in  any  manner  or  degree,  to 
disturb  its  operation.  The  "  right  of  conscience,"  as  thus  defined, 
was  plain  and  intelligible ;  it  was  distinctly  recognized  and  estab- 
lished, in  more  than  one  article  of  the  constitution  ;  and  of  all  other 
rights  belonging  to  the  citizen,  it  was  deemed  by  the  framers  of  that 
instrument  to  be   the  most  sacred  and   inviolable.     This  was  also, 


MASSACHUSETTS    CONVENTION.  439 

without  doubt,  said  Mr.  B.,  to  be  reckoned  among  the  inalienable 
rights  of  the  citizen,  and  it  followed  therefore,  as  a  conclusion,  that 
neither  the  government  of  Massachusetts,  nor  a  majority  of  the  people 
sovereign  as  they  are,  are  permitted  on  any  legitimate  ground  of  princi- 
ple or  reason  to  interfere  with  its  exercise.  But,  said  Mr.  B.,  while 
no  man  in  the  community  could  be  more  disposed  than  he  was,  not 
only  as  regards  religion  but  as  relates  to  every  other  concern  of  life, 
to  hold  sacred  and  inviolate  the  claims  of  conscience,  yet  he  was  not 
inclined  for  one,  to  pay  great  deference  to  the  pretensions  of  that 
specious  and  notional  thing,  which  occasionally  had  assumed 
that  name.  While  on  the  one  hand,  he  would  be  among  the  last  to 
advocate  any  provision  in  the  constitution  which  should  disturb  in 
the  slightest  degree  the  real  right  of  conscience,  yet  on  the  other 
hand  he  would  not  be  deterred  from  the  adoption  of  a  sound  and 
salutary  principle,  by  yielding  too  readily  to  its  freaks  and  caprices, 
its  pleas  and  its  pretexts.  He  well  knew,  said  Mr.  B.,  that  when 
the  reverend  and  pious  and  highly  respectable  members  of  this 
assembly  had  been  speaking  of  conscientious  scruples  in  relation  to 
the  subject  under  discussion,  they  meant  not  to  be  more  indulgent 
than  he  was  to  mere  affectation  and  pretence.  But  it  should  be 
remembered,  said  Mr.  B.,  that  neither  the  constitution  nor  the  laws 
were  made  for  the  government  of  the  pious  and  the  virtuous  part  of 
the  community ;  or  in  other  words,  of  such  men  as  are  the  reverend 
members  of  this  Convention.  It  was  for  the  restraint  of  the  profli- 
gate and  licentious  ;  for  the  control  of  the  unprincipled  and  lawless, 
that  both  the  constitution  and  the  law  were  alone  intended.  What 
then,  sa'id  Mr.  B.,  might  not  be  the  mischief,  if  the  whole  subject  of 
our  religious  institutions  ;  those  institutions  which  were  pronounced 
by  the  constitution,  and  even  admitted  in  the  arguments  of  gentle- 
men, to  be  so  essential  to  the  happiness  of  the  people,  and  the 
preservation  of  peace  and  good  order  in  civil  government,  should  be 
left  to  the  voluntary  disposition  of  every  man  in  the  community 
who  might  choose  to  resort  to  the  subterfuge  of  a  conscientious 
scruple.  Sir,  said  Mr.  B.,  there  is  no  end  to  scruples  or  pretended 
scruples  of  this  kind ;  there  is  scarcely  a  man  in  the  community, 
whatever  may  be  his  character  or  his  conduct  among  his  fellow 
men,  who  does  not  believe  or  at  least  imagine,  that  in  every  concern 
of  his  life  he  has  been  regulated  by  the  dictates  of  a  u  good  con- 
science." 

"  We  trust  we  have  a  good  conscience"  is  a  sentiment  almost  uni- 
versal. 

One  shall  grind  the  face  of  the  poor,  shall  have  wrung  the  scanty 
pittance  from  the  helpless  widow  and  the  orphan,  yet  what  he 
exacted  was  his  due,  and  as  he  pays  his  own  debts,  so,  in  good  con- 
science, he  has  the  right  to  require  of  others  the  payment  of  theirs. 

Even  the  remorseless  Jew,  prepared  with  his  knife  and  his 
scales  to  carve  the  pound  of  flesh  from  the  bosom  of  his  debtor,  did 
but  exact  the  due  and  legal  forfeit  of  his  bond  ;  he  moreover  ful- 
filled his  bargains  upon  the  Rialto  ;  and  we  are  not  told  that  he 


440  MASSACHUSETTS    CONVENTION. 

was  deterred  by  any  qualm  of  conscience  from  proceeding  to  the 
execution  of  the  bloody  business  he  had  in  view.  Sir,  said  Mr.  B., 
this  plea  of  conscience  often  stands  in  the  way  of  legislative  pro- 
ceeding ;  it  had  more  than  once  stood  in  our  own  way,  since  the 
first  assemblage  of  this  Convention,  in  relation  to  several  important 
subjects  that  have  been  passing  in  discussion  before  us.  In  relation 
to  the  proposed  organization  and  discipline  of  the  militia,  it  had 
been  seen  that  whole  classes  of  individuals  had  claimed  to  be  ex- 
empt from  the  operation  of  the  general  principle,  because,  in  "  good 
conscience,"  they  could  not  endure  the  idea  of  wars  and  battles,  or 
submit  to  all  the  horrors  of  bearing  arms !  So  as  to  the  concerns 
of  the  judicial  department.  The  very  streams  of  justice  must  be 
impeded,  and  its  fountains  broken  up,  by  reason  of  conscientious 
scruples  on  the  subject  of  oaths.  Many  other  instances,  by  way  of 
example,  might  be  enumerated,  for  the  purpose  of  showing  the 
incalculable  mischief  and  inconvenience  which  must  attend  the 
management  of  the  various  concerns  of  society,  were  we  to  attach 
great  importance  to  objections  of  this  kind.  But,  said  Mr.  B.,  there 
was,  without  doubt,  a  genuine,  admitted  right  of  conscience,  which 
was  holden  sacred  by  the  constitution,  and  which  most  assuredly 
ought  not  to  be,  and  he  trusted  never  would  be,  violated  with 
impunity,  either  by  the  people  or  their  representatives.  He  had 
already,  in  a  former  part  of  his  remarks,  attempted  to  give  some- 
thing like  an  explanation  of  the  nature  of  this  right ;  and  he  would 
here  take  occasion  to  repeat,  that,  according  to  his  apprehension, 
it  was  not  to  the  subject  of  this  right,  but  to  a  very  different  subject 
and  object,  to  which  the  arguments  of  gentlemen  on  the  other  side 
were  alone  applicable.  His  reverend  colleague  from  Boston,  with  a 
frankness  and  candor  that  were  the  peculiar  and  well  known  char- 
acteristics of  his  disposition  on  all  subjects,  had,  in  the  course  of 
his  arguments,  been  pleased  to  admit,  that  every  religious  institution 
in  the  Commonwealth,  of  whatever  sect  or  denomination,  had  been 
productive,  in  his  opinion,  and  would  continue  to  be  so,  of  benefi- 
cial effects  upon  the  morals  and  good  order  of  society.  Other  rev- 
erend gentlemen  had  seen  fit  also  to  express,  in  the  course  of  debate, 
a  similar  sentiment.  In  this  concession,  then,  said  Mr.  B.,  he 
found  quite  enough,  if  there  were  nothing  else  favorable  in  the 
case,  for  the  support  of  the  principle  for  which  he  had  contended. 
Upon  this  ground  the  question  had  ceased  to  be  a  matter  of  con- 
science, and  had  become  a  mere  question  of  taxation,  of  money, 
and  nothing  besides.  If  the  Baptists,  the  Methodists,  the  Episco- 
palians, and  all  other  teachers  of  any  and  every  denomination  of 
Christians,  were  in  reality,  as  had  been  conceded,  doing  good  to  the 
cause  of  civil  society  by  their  instructions,  how  could  it  be  said  by 
any  man,  with  reason,  that  he  could  not  conscientiously  administer 
to  the  support  of  such  teachers,  although  their  particular  tenets  as 
Christians  happened  not  to  be  precisely  in  unison  with  his  own  ? 
He  insisted,  therefore,  again  and  again,  that  the  objection  was 
founded  not  on  any  scruple  of  conscience,  but  was  referable  only  to 


MASSACHUSETTS    CONVENTION.  441 

a  question  of  expense.  Yet  it  had  appeared  from  the  course  of  the 
debate  that  there  must  be  something  absolutely  shocking  to  the 
feelings  of  a  conscientious  Christian,  that  he  should  be  required  to 
contribute,  however  indirectly,  and  however  necessary  might  be 
the  requisition  for  the  great  purposes  of  civil  government,  to  the 
support  of  any  religious  teacher,  whatever  might  be  his  purity  and 
piety,  but  whose  particular  tenets  were  not  precisely  conformable 
with  his  own  ;  and  gentlemen  have  even  spoken  of  a  tax  in  such 
case  with  an  expression  of  abhorrence,  as  though  it  were  to  be 
appropriated  to  the  promotion  of  Pagan  idolatry,  or  of  the  horrible 
rites  and  abominations  of  the  temple  of  Juggernaut.  As  relates  to 
the  true  principle  for  which  he  contended,  and  in  further  explana- 
tion of  the  interest  of  civil  government  in  the  question,  as  well  as 
its  right  to  interfere  to  the  extent  contemplated  in  the  third  article 
of  the  constitution,  he  begged  leave,  said  Mr.  B.,  to  state  one  or  two 
examples  in  the  way  of  illustration.  Suppose,  said  Mr.  B.,  a  ma- 
jority of  the  people  of  the  United  States  were  to  decide  that  it 
would  advance  the  dignity  and  glory  of  the  nation, — that  it  would 
be  promotive  of  its  honor  and  happiness,  to  establish,  at  the  public 
expense,  a  missionary  society,  having  for  its  object  to  diffuse  far 
and  wide  the  principles  of  Christianity,  not  only  through  the  coun- 
try but  through  the  world.  He  would  ask  if  the  minority  in 
such  case,  being  members  as  they  were  of  a  Christian  community, 
could  complain  of  injustice  ?  much  less  could  they  feel  their  con- 
sciences'  afflicted  when  required  to  contribute  for  the  accomplish- 
ment of  so  grand,  so  noble  an  undertaking  ?  They  might  indeed 
disapprove  the  project  ;  it  might  appear  to  them  as  being  wild  and 
visionary ;  but  of  all  this  the  majority,  and  not  they,  are  the  legiti- 
mate arbiters.  The  question  returns,  is  there  anything  in  the  case, 
at  which  the  conscience  of  the  most  scrupulous  individual  would 
revolt,  who,  at  the  same  time,  should  profess  to  be  unconcerned 
for  his  money  ?  Suppose  again,  it  should  be  the  pleasure  of  a 
majority  of  the  nation  to  erect,  near  the  centre  of  the  Union, 
some  grand  edifice,  in  faint  imitation  of  the  renowned  temple  of 
the  great  and  wise  man  of  antiquity  ;  suppose  it  were  dedicated  to 
the  service  of  Christianity,  and  the  people  were  invited,  but  not  com- 
pelled, annually  to  assemble  thereat,  and  to  unite  in  one  great  act  of 
devotion  and  praise  to  the  King  of  kings  and  Lord  of  lords  ?  Sup- 
pose the  "  happiness  of  the  people,"  "  the  preservation  of  civil  gov- 
ernment" were  deemed  by  the  majority  to  be  essentially  dependent 
on  the  good  effects  of  such  an  institution  :  was  there  anything  in 
the  project,  said  Mr.  B.,  unusual  and  extraordinary  as  it  might  be 
esteemed,  that  was  calculated  to  affright  the  conscience  of  the  citi- 
zen ;  or  to  excite  in  his  mind  any  other  scruple  or  misgiving  than 
such  as  might  arise  from  the  objection  of  becoming  tributary,  against 
his  will  and  his  wishes,  to  the  furtherance  of  so  extravagant,  so 
fantastic  an  undertaking.  It  was  not,  then,  said  Mr.  B.,  an  affair  of 
conscience,  but,  in  truth,  an  aversion  to  taxes,  that  had  been  made 
the  foundation  of  the  argument  throughout  the  debate,  against  the 
56 


/ 

442  MASSACHUSETTS    CONVENTION. 

existing  provisions  of  our  admirable  constitution,  which  relate  to 
the  subject  of  our  institutions  for  public  worship  ;  and,  said  Mr.  B., 
it  was  worthy  of  all  notice,  that,  among  all  the  grievances  that  had 
been  stated  from  different  quarters  of  the  house,  and  notwithstand- 
ing the  vast  variety  of  detail  with  which  the  committee  had  been 
favored,  respecting  warrants,  and  lawsuits,  of  parish  rates  and  as- 
sessments, not  a  single  individual  had  been  heard  to  complain  of 
any  mental  agony,  or  any  wound  that  had  been  inflicted  on  his  con- 
science. He  was  willing,  said  Mr.  B.,  to  admit,  and  he  cheerfully 
did  so,  that  particular  inconveniences  and  inequalities  had  occasion- 
ally been  experienced  under  the  operation  of  the  constitutional  pro- 
vision, and  that  some  such  might  very  probably  be  attendant,  also, 
upon  the  arrangement  which  had  been  proposed  by  the  select  com- 
mittee. It  was  most  certain,  however,  that  if  the  combined  intelli- 
gence and  wisdom  of  the  universe  were  concentrated,  and  engaged 
in  deliberating  upon  this  subject,  it  would  be  impossible  that  any 
general  rule  should  be  established  that  would  be  exempt  from 
similar  exception.  The  laws  of  society,  like  the  laws  of  nature, 
were  steady  and  uniform  in  their  operation,  and  could  not  bend  to 
particular  cases.  We  behold  the  summer's  cloud  ;  it  is  driven  on 
its  course  by  the  impulse  of  a  fixed,  undeviating,  unchangable  prin- 
ciple, and  stops  not  in  its  career  to  select  the  places  whereon  to 
pour  its  waters  ;  the  lightnings  also  descend  ;  the  substance  of  one 
man  is  blasted  and  another  saved.  Yet  who  was  there  so  foolish 
as  to  complain  of  inequalities  in  the  operation  of  this  grand  phe- 
nomenon in  nature,  or  to  say  he  desires  not  the  refreshing  and  fertil- 
izing showers  of  heaven  ?  Of  a  similar  character,  said  Mr.  B.,  it 
had  appeared  to  his  mind — and  he  had  devoted  much  attention  to 
the  subject — were  the  inconveniences  and  inequalities  which  had 
been  so  feelingly  and  forcibly  stated  in  argument  by  some  of  the 
members  of  this  committee.  In  his  view,  they  were  the  natural 
and  necessary  effect  of  the  generality  of  the  provision,  rather  than 
the  fault  of  the  provision  itself.  But  whatever  they  might  be,  or  to 
whatever  cause  attributable,  they  had  seemed  to  him,  when  put  in 
comparison  with  the  great  public  benefits  which  had  been,  and 
would  continue  to  be  derived  from  the  preservation  of  the  grand 
principle  recognized  in  the  third  article  of  the  declaration  of  rights, 
as  but  a  grain  of  sand  on  the  desert  of  Arabia,  or  but  a  single  drop 
to  all  the  waters  of  ocean. 

Mr.  B.  added  by  stating  that  it  had  been  the  anxious  desire  of 
the  special  committee  to  obviate,  as  far  as  possible,  all  the  inconven- 
iences which  had  been  experienced  under  the  operation  of  the 
constitutional  provision  as  it  stands ;  and  he  yet  entertained  the 
hope,  that  the  plan  proposed  by  the  report  of  that  committee,  with 
some  few  modifications  that  might  be  suggested,  would  be  accepta- 
ble to  all. 

Mr.  B.  remarked,  in  conclusion,  that  it  had  been  his  intention  to 
take  no  other  part  in  the  discussion  than  as  a  mere  layman :  that 
he  professed  not  to  have   been  actuated  by  any  extraordinary  zeal 


MASSACHUSETTS     CONVENTION.  443 

or  solicitude  on  the  occasion,  but  had  looked  at  a  principle  in  the 
constitution  with  reference  only  to  its  influence  and  operation  upon 
the  best  interest  of  society,  and  pretended  to  feel  no  other  concern 
for  its  preservation,  than  such  as  was  common  to  any  other  indi- 
vidual in  the  community. 

Mr.  Webstkr  said  his  principal  object  in  rising,  was  to  ask  the 
gentleman  who  proposed  the  modification  of  the  amendment, 
whether  the  amendment  would  not  allow  any  three  men  to  form 
a  society  and  contribute  a  shilling  apiece  and  hear  a  sermon  once 
in  two  years,  and  be  excused  from  any  further  attention  to  public 
worship.  This  consequence  seemed  to  him  to  follow  inevitably. 
Mr.  W.  said  that  as  he  was  up,  he  would  take  occasion  to  discharge 
all  his  duty  in  relation  to  the  present  subject.  This  committee,  a 
numerous  body,  had  repeatedly  decided  on  the  leading  principles, 
that  it  was  in  the  power  of  the  government,  and  it  was  its  duty,  to 
provide  for  the  support  of  public  worship.  If  they  went  into  de- 
tail, they  would  never  come  to  an  end.  Their  object  should  be  to 
fix  only  general  rules,  and  leave  the  application  to  be  made  by  the 
Legislature.  It  was  perfectly  well  observed  by  the  gentleman  from 
Reading,  the  more  they  inserted  in  the  constitution  which  the  Leg- 
islature could  not  modify,  the  greater  was  the  opening  for  abuse. 
Gentlemen  were  mistaken  if  they  thought  that  the  longer  they 
made  the  provisions  of  the  constitution,  the  more  clear  they  should 
make  them.  Litigation  was  never  avoided  by  having  long  statutes. 
The  Legislature  ought  to  have  the  power  of  making  the  particular 
provisions  on  this  subject  as  on  others.  Where  is  the  definition  of 
murder  left  ?  The  Legislature  may  say  that  slaying  without  malice 
shall  be  murder.  They  may  say  that  stealing  a  shilling  shall  be 
capital.  Yet  the  constitution  does  not  go  into  details  on  these  sub- 
jects. The  committee  had  listened  to  cases  of  particular  hardships. 
This  was  a  necessary  consequence  of  all  general  rules.  The  sects 
in  this  country  seemed  to  require  more  guards  against  the  oppres- 
sion of  each  other,  than  they  would  in  Turkey  against  the  oppres- 
sion of  the  Grand  Seignior.  He  entreated  gentlemen  to  consider 
that  if  their  debates  were  to  go  abroad  literally  reported,  the  im- 
pression would  be  that  religious  liberty  did  not  exist  among  us. 
The  French  had  a  maxim  in  eloquence  that  nothing  was  beautiful 
which  was  not  true.  He  wished  gentlemen  would  pay  regard  to 
this  maxim  in  their  speeches.  The  committee  had  agreed  to  strike 
out  of  the  constitution  that  part  which  respects  enjoining  attend- 
ance on  public  worship.  He  agreed  with  them.  That  was  the 
only  part  which  seemed  to  affect  liberty  of  conscience.  Gentle- 
men had  talked  of  paying  for  doctrines  abhorrent  to  their  feelings — 
he  knew  of  none  such.  The  effect  of  every  sect  was  good,  when 
we  look  to  the  interest  of  society.  He  might  dissent  from  one  on 
account  of  its  excessive  fanaticism,  and  from  another  on  account  of 
its  excessive  liberality ;  but  no  man  would  say  they  were  not  bene- 
ficial to  society.  How  then  could  they  object  to  taxes  for  the  sup- 
port of  them  on  the   ground  of  conscience  ?     It  was  proper  to  put 


444  MASSACHUSETTS    CONVENTION. 

guards  on  the  power  of  taxing  for  this  purpose  ;  but  there  was  no 
right  of  conscience  in  this  case  ;  it  was  a  right  of  property.    When 
gentlemen  should  put  it  on  this  ground,  he  should  agree  with  them, 
and  then  the   question  will  amount  to  nothing  more  than  this : — 
what  power  or  what  duties  shall  be  put  upon  the  Legislature  ?    The 
committee  had  agreed  to  strike  out  the  clause  for  enjoining  attend- 
ance  on  public  worship.      What  remained  to  be  done  ?      It  had 
been  frequently  said  that  if  the  law  of  1811  should  continue   in 
force  nothing  more  would  be  wanted.     That  law  was  a  declaratory 
law  ;  it  had  been  acted  upon  ;  it  stood  on  the  ground  of  other  laws, 
which  had  been  found  satisfactory.     There  was  no  reason   to  sup- 
pose the  Legislature  would  repeal  this  law,  any  more  than  the  law 
respecting  primogeniture  or  estates  tail.     One   part  of  the   law  of 
1811   put  unincorporated  societies  on  a  footing  with  incorporated 
societies ;  another  part  related  to  the  disputed  point,  whether  a  man 
could  go  from   one   society  to  another   of  the  same  denomination. 
The  learned  gentleman  from  Newburyport  said  yesterday,  that  one 
might  by  this  law ;  and  other  gentlemen    of  great  weight,  among 
them    the  chairman  of  the  select  committee,  (Mr.  Bliss)  had  said 
that  the   true   construction  of  the  constitution  itself  allowed  the* 
same  thing.     The  third  resolution  of  the  select,  committee,  which 
had  just  been  adopted,  recognized  the  principle  that  unincorporated 
societies  were  such  as  should  discharge   a  person  from  his  former 
society- — a  branch  of  the  law   of  1811.    Was  not  this  enough?  and 
better  than  going  into  a  great  deal  of  detail?     The  word  "protes- 
tant "  had  given  place  to  the  word  "Christian,"  and  the  clause  for 
enjoining  attendance   on   public  worship    was   struck   out.     What 
more  was  required  ?     Nothing  but  to  make   certain  the   right  of 
going  from  one  society  to  another  of  the  same  denomination.     He 
was  willing  to  do  this ;  and  if  he  might,  as  he  believed  he  might, 
he  would  move  to  amend  the  amendment  of  the  gentleman  from 
Beverly,  as  modified  at  the  suggestion  of  his  colleague,  (Mr.  Parker) 
by  striking  out  all  after  the  word  "resolved  "  and  inserting  the  fol- 
lowing, viz.: 

"  That  it  is  not  expedient  to  make  any  further  alteration  in  the  third  article  of 
the  declaration  of  rights,  except  to  provide,  that  all  moneys  paid  by  the  subject  for 
the  support  of  public  worship  and  of  the  public  teachers  of  piety,  religion  and 
morality,  if  he  shall  request  it,  be  applied  to  the  public  teacher  or  teachers,  if  any, 
on  whose  instruction  he  attends,  whether  of  the  same,  or  of  a  different  sect  or  de- 
nomination from  that  in  which  the  money  is  raised .  " 

It  would  recognize  the  two  great  principles  of  the  law  of  1811, 
relating  to  unincorporated  societies,  and  to  going  from  one  society 
to  another  of  the  same  denomination.  His  apology  for  making 
this  proposition  was,  that  the  subject  was  so  fertile  in  projects,  it 
was  necessary  to  take  the  sense  of  the  committee  negatively. 

The  Chairman  said  the  proposition  could  not  be  received,  be- 
cause, if  adopted,  it  would  exclude  from  consideration  other  propo- 
sitions before  the  committee. 

Mr.  Webster   said   he  was  surprised  at   this  decision.      On   this 


MASSACHUSETTS    CONVENTION.  445 

principle  no  matter  could  be  decided,  unless  every  other  matter 
which  was  contradictory  was  first  discussed.  Giving  the  negative 
to  a  proposition  was  discussion  enough. 

After  Messrs.  Dana,  Q,uincy  and  Whittemore  had  made  a  few 
remarks  on  the  point  of  order,  Mr.  Webster  appealed  from  the  de- 
cision of  the  chair,  and  gave  his  reasons.  A  resolution  reported  by 
the  select  committee  is  under  consideration.  An  amendment  is 
proposed.  He  moves  to  amend  the  amendment.  Amendments 
could  be  built  two  stories  high,  as  the  chairman  had  correctly  ex- 
pressed it,  and  no  higher.  He  amended  by  agreeing  with  the  gen- 
tleman from  Beverly  to  strike  out,  and  differed  from  him  as  to  the 
matter  to  be  inserted. 

The  question  on  the  appeal  was  taken  and  decided  against  the 
chair,  109  to  209. 

Mr.  Nichols,  Mr.  Williams  of  Beverly,  Mr.  Low  of  Beverly,  Mr. 
Lincoln  of  Boston,  Mr.  Stone  of  Stow  and  Boxborough.  and  Mr. 
Lincoln  of  Worcester  spoke  against  the  resolution. 

Mr.  Webster  replied  to  the  remarks  of  the  gentlemen  who  op- 
posed the  resolution. 

The  question  on  accepting  the  proposition  offered  by  Mr.  Web- 
ster was  then  taken,  and  the  votes  were  196  to  195.  And  the 
chairman  voting  with  the  minority,  there  was  an  equal  division  and 
the  question  was  lost. 

The  committee  then  rose,  reported  progress,  and  had  leave  to  sit 
again. 

Leave  of  absence  was  granted  to  Messrs.  Hosford  of  Williams- 
town,  Smith  of  Sunderland,  and  Barnard,  Mitchell,  Folger,  Bur- 
nell,  and  William  Mitchell  of  Nantucket.  The  last  five  named 
gentlemen  were  excused  on  the  ground  that  the  harbor  of  Nantucket 
would  probably  be  frozen  up  so  as  to  prevent  their  return  to  their 
homes  this  winter,  if  they  are  longer  detained. 

Mr.  Hussey  of  Nantucket  urged  at  some  length  the  reasons  for 
granting  leave  to  these  gentlemen.  Adjourned  to  half  past  3  in  the 
afternoon. 

Afternoon  Session. 

The  Convention  met  according  to  adjournment. 

Mr.  Webster  said  that  in  committee  of  the  whole  in  the  fore- 
noon, a  vote  was  taken,  the  effect  of  which,  if  passed  in  the  affir- 
mative, would  have  been  to  terminate  the  debate  on  the  subject  be- 
fore the  committee.  It  was  passed  in  the  negative  by  the  casting 
vote  of  the  chairman  of  the  committee,  very  properly  given.  No 
gentleman  could  suppose  that  any  alteration  of  the  constitution 
could  be  carried  into  effect  which  was  passed  by  a  single  vote  or 
half  a  vote  of  that  body.  He  had  ascertained  that  it  was  not  gen- 
erally understood  that  the  adoption  of  the  resolution  which  he  had 
proposed  would  be  to  adopt  the  main  principles  of  the  law  of  1811. 
He  should  ask  to  have  the  resolution  read  from  the  chair,  and  it 
would  then  be  in  order  to  move  that  it  be  committed  to  a  commit- 
tee of  the  whole  and  made  the  order  of  the  dav  for  this  dav. 


446  '  MASSACHUSETTS    CONVENTION. 

The  resolution  being  read,  Mr.  Webster  moved  as  above 
stated. 

Mr.  Martin  and  Mr.  Nichols  opposed  the  commitment,  and  Mr. 
Dwight  spoke  in  favor  of  it. 

Mr.  Wilde  said  that  he  should  not  have  opposed  the  motion  if 
it  had  not  been  placed  on  a  ground  that  he  thought  was  untenable ; 
that  some  gentlemen  were  mistaken  in  supposing  that  it  did  em- 
brace the  substance  of  the  law  of  1811.  Mr.  W.  thought  that  it 
did  not  contain  the  substance  of  that  law.  It  did  not  contain  the 
second  section  in  any  degree.  That  section  provided  that  any  per- 
son having  obtained  a  certificate  of  a  committee  of  any  religious 
society,  though  he  should  not  have  contributed  a  cent  towards  the 
support  of  religion  in  that  society,  is  exempted  from  taxation  in  the 
parish  in  which  he  resides.  That  was  not  contained  in  the  propo- 
sition, but  on  the  other  hand  it  would  require  that  all  should  be 
taxed  in  the  parishes  and  the  money  drawn  out.  The  only  differ- 
ence between  it  and  the  third  article  was,  that  it  allowed  persons  to 
go  from  the  regular  society  to  another  of  the  same  denomination 
and  to  draw  out  the  amount  of  his  tax  for  the  support  of  the  soci- 
ety to  which  he  has  become  united.  The  difference  between  it 
and  the  proposition  for  which  it  was  a  substitute  was,  that  the  lat- 
ter allowed  all  societies  to  raise  moneys  by  tax  for  their  own  pur- 
poses, and  exempted  the  members  of  them  from  taxation,  instead 
of  allowing  the  taxes  paid  by  such  members  to  be  drawn  from  the 
town  and  parish  treasuries.  He  was  therefore  opposed  to  the  com- 
mitment. He  had  never  before  voted  against  the  commitment  of 
any  proposition  to  a  committee  of  the  whole.  But  this  subject  had 
been  already  discussed  in  the  committee. 

Mr.  Webster  understood  the  rule  of  the  House  to  be  that  every 
motion  proposing  an  amendment  of  the  constitution  should  first  be 
discussed  in  committee  of  the  whole  before  being  acted  upon  in 
Convention.  This  had  not  been  so  discussed.  He  should  not  con- 
sider it  a  great  extension  of  the  courtesy  of  the  gentleman  to  allow 
it  the  favor  which  he  says  he  has  extended  to  every  other  proposi- 
tion. He  asked  if  gentlemen  expected  to  carry  any  amendment 
when  it  had  been  decided  within  half  a  vote  that  no  further  alter- 
ation was  necessary. 

Mr.  Wilde  stated  his  view  of  the  rule  alluded  to. 

Mr.  Webster  asked  how  it  could  be  known  that  a  proposition 
had  been  discussed  in  committee  of  the  whole,  when  there  had  been 
no  report  on  the  proposition. 

The  question  was  then  taken  on  Mr.  Webster's  motion  and  lost, 
144  to  187. 

Leave  of  absence  was  granted  to  Mr.  McLellan  of  Coleraine. 

On  motion  of  Mr.  Williams  the  Convention  then  went  into  com- 
mittee of  the  whole,  on  the  unfinished  business  of  the  forenoon  ; 
Mr.  Varnum  in  the  chair. 

The  resolution  offered  by  Mr.  Williams  as  modified,  was  read. 

Mr.  Webster  stated  his  objections  to  the  proposition.     He  asked 


MASSACHUSETTS     CONVENTION.  447 

how  it  would  be  determined  what  was  the  maintenance  of  public 
worship.  Three  men,  the  richest  in  the  community,  might  form  a 
society,  pay  a  shilling  apiece,  and  have  a  sermon  once  a  year,  and 
this  would  be  maintaining  public  worship.  It  would  be  impossible 
to  define  public  worship  in  such  a  manner  that  this  provision  would 
not  entirely  do  away  the  effect  of  the  third  article.  It  was  not 
merely  a  contest  for  the  manner  in  which  money  should  be  raised, 
but  for  the  amount.  He  contended  for  an  equality  in  the  amount 
of  contributions  for  the  support  of  public  worship  and  religious  in- 
struction, in  proportion  to  the  ability  of  each  individual  to  pay.  He 
would  not  leave  it  for  the  poorer  class  of  the  community  to  main- 
tain a  stated  observance  of  public  worship,  while  others  shall  have 
it  at  their  option  to  meet  once  a  month  or  once  a  year,  and  call  that 
public  worship. 

Mr.  Parker  of  Boston  did  not  expect  to  be  called  upon  to  enter 
the  field  of  combat  on  any  proposition.  He  thought  that  every  one 
would  be  satisfied  that  he  should  not  be  willing  to  make  any  alter- 
ation in  the  third  article  that  should  impair  the  effect  of  it.  The 
proposition  which  had  met  with  his  concurrence  had  been  pro- 
nounced by  the  gentleman  last  speaking,  to  be  the  worst  proposition 
that  had  been  submitted.  It  might  be  so,  but  he  should  appeal  to 
the  sense  of  the  Convention.  If  he  should  be  satisfied  that  it  would 
materially  impair  the  effect  of  the  third  article,  he  would  vote  against 
it  at  the  last  stage.  The  essence  and  marrow  of  the  article  was, 
that  towns  and  parishes  should  have  power  to  levy  taxes  for  the 
support  of  public  worship.  But  there  was  another  part  of  it  which 
required  that  the  rights  of  individuals  should  not  be  interfered  with. 
The  question  now  was  in  what  manner  this  last  object  should  be 
secured.  Should  it  be  done  by  taxing  every  individual  within  the 
parish  lines,  and  giving  permission  to  those  who  attend  worship  in 
other  societies  to  draw  out  their  proportion  of  the  tax  ?  What  in- 
terest have  the  parish  in  taxing  ten  or  fifteen  persons  who  the  next 
day  after  the  money  was  paid  would  carry  it  away  to  their  own 
minister.  If  there  were  persons  who  belonged  to  another  society, 
was  it  not  better  to  stop  in  the  outset,  and  let  them  tax  themselves  ? 
He  thought  this  was  the  best  mode.  He  knew  that  some  of  his 
friends  were  startled  at  it,  but  he  maintained  that  it  was  better  than 
the  law  of  1811.  It  was  said  that  that  law  might  be  repealed.  But 
there  was  no  instance  of  a  law  of  this  kind,  which  extended  an  in- 
dulgence to  a  numerous  class  of  people,  being  repealed.  If  it  was 
repealed,  it  would  produce  a  popular  excitement  that  would  require 
its  reenactment.  ■  He  considered  it  as  permanent.  By  this  law  a 
person  who  does  not  attend  worship  in  the  parish  where  he  dwells, 
by  getting  the  certificate  of  a  committee  of  any  other  society,  shall 
be  exempt  from  taxation.  Such  society  may  consist  of  five,  ten 
or  fifteen  persons,  and  it  is  not  necessary  that  they  shall  have  a 
minister  to  give  a  certificate.  By  this  proposition  it  is  provided, 
that  to  exempt  such  person  from  taxation,  he  shall  belong  to  some 
society  where  public  worship  is  maintained.     But  gentlemen  asked 


448  MASSACHUSETTS    CONVENTION. 

who  is  to  judge  what  is  the  maintenance  of  public  worship.  He 
asked  who  under  the  constitution  was  to  judge  ?  He  did  not  know 
any  better  rule  than  to  require  that  they  should  maintain  the  pub- 
lic worship  of  God.  Suppose  an  action  to  be  brought  in  which  the 
question  was  involved  whether  public  worship  was  maintained  or 
not,  and  it  would  go  to  a  jury  to  decide  whether  it  was  a  society 
within  the  meaning  of  the  constitution.  It  could  easily  be  shown 
whether  public  worship  was  maintained  in  a  suitable  manner.  It 
would  undoubtedly  be  required  that  it  should  be  maintained  con- 
stantly, unless  prevented  by  some  accident  or  some  sufficient  rea- 
son. He  thought  the  provision  was  more  effectual  than  if  it  was 
attempted  to  designate  the  object  by  any  form  of  words.  The  first 
part  of  the  resolution  he  did  not  consider  of  much  importance  ;  it 
was  at  the  worst  but  harmless. 

Mr.  Foster  spoke  against  the  resolution. 

Mr.  Webster  said  he  knew  it  was  hard  to  defend  a  fortress  after 
those  who  had  been  principally  relied  upon  had  abandoned  the  de- 
fence. He  came  into  this  debate  at  a  late  period.  He  believed 
that  the  third  article  might  be  useful,  but  this  proposition  was  totally 
subversive  of  all  that  was  contained  in  that  article.  It  was  called  a 
treaty  for  reconciling  those  who  had  maintained  different  opinions. 
He  wished  not  to  be  bound  by  the  treaty.  He  would  rather  take 
the  proposition  of  the  gentleman  from  Pittsfield.  After  laying  it 
down  that  it  shall  be  the  duty  of  the  Legislature  to  provide  for  the 
support  of  public  worship,  it  takes  from  them  the  power  to  make 
such  provision.  He  would  not  put  his  name  to  such  a  treaty.  The 
Convention,  in  the  votes  they  had  passed,  had  adopted  the  ground 
that  the  whole  public  as  a  community  has  an  interest  in  supporting 
public  instructors  of  piety,  religion  and  morality.  He  knew  that 
there  were  various  doctrines — that  it  had  been  maintained  that 
government  had  nothing  to  do  with  religion.  He  went  on  the 
ground  that  the  committee  had  already  established  that  the  State 
had  an  interest  in  the  support  of  religion.  He  was  then  for  the 
State,  and  not  for  religion.  If  it  was  true,  as  the  committee  had 
determined,  that  the  community  has  an  interest  in  religion,  he  who 
has  the  greatest  stake  in  the  community,  has  the  greatest  interest 
in  the  support  of  religion.  Whatever  is  for  the  public  good,  every 
one  was  bound  to  contribute  to  the  support  of,  according  to  his  abil- 
ity. It  having  been  determined  that  the  support  of  public  worship 
was  for  the  public  good,  and  that  it  was  the  duty  of  the  community 
to  provide  for  its  support,  he  objected  to  any  proposition  that  should 
destroy  all  equality  of  contribution.  It  could  not  be  shown  that 
this  proposition  would  secure  any  equality.  It  makes  one  man  sub- 
ject to  the  law  and  binds  him  to  contribute,  and  another  not.  It 
provides  the  means  by  which  every  man  may  avow  the  obligation, 
and  leave  the  whole  burden  upon  the  well  disposed  part  of  the 
community.  He  thought  that  gentlemen  were  playing  at  extreme 
cross  purposes  for  their  own  objects.  One  party  is  afraid  to  trust 
the  Legislature  with  the  power  to  repeal  the  law  of  1811,  by  which 


MASSACHUSETTS    CONVENTION.  449 

persons  are  exempt  from  taxation  by  joining  a  society  which  does 
not  support  public  worship.  But  they  are  satisfied  with  this  propo- 
sition. They  do  not  mean  to  subject  themselves  by  it  to  the  liabil- 
ity of  supporting  public  worship;  they  mean  that  every  person 
shall  contribute  what  he  pleases,  and  be  exempt  from  taxation  on 
such  terms  as  he  pleases.  He  did  not  complain  of  this  in  those  gen- 
tlemen ;  it  was  according  to  their  principles.  They  had  given  suffi- 
cient pledge  that  they  wished  to  strike  out  the  whole  of  the  third 
article.  But  he  protested,  that  the  Convention,  having  resolved 
that  the  people  have  a  right  to  compel  every  one  to  pay  for  the  sup- 
port of  public  worship  according  to  his  ability,  and  that  this  is 
essential  to  the  good  order  and  happiness  of  the  community,  cannot 
consistently  with  this  resolution  pass  a  resolve  by  which  every  indi- 
vidual can  avoid  paying,  under  a  plea  of  having  joined  a  society 
where  there  is  no  security  for  the  maintenance  of  public  worship. 
He  knew  that  societies  might  be  formed,  and  that  they  had  already 
been  formed  for  the  express  purpose  of  enabling  the  members  to 
evade  the  obligation.  This  proposition  laid  no  foundation  by 
which  the  Legislature  could  enforce  anything  like  equality  in  the 
constitution  for  the  support  of  religious  instruction.  He  deemed 
there  were  persons  who  took  a  very  limited  view  of  this  subject. 
There  were  those  in  that  hall,  who  consider  religion  as  something 
which  concerns  only  the  individual  who  receives  it.  He  did  not 
so  view  the  subject.  He  considered  it  the  only  security  of  the 
good  order  of  society,  as  the  basis  of  the  moral  character  of  the 
community,  as  the  only  protection  of  a  free  government.  The 
question  was,  whether  we  should  take  measures  through  the  power 
which  it  was  declared  the  government  ought  to  possess  to  dissem- 
inate this  religion,  or  leave  it  to  the  will  of  every  individual.  There 
were  those  who  maintained  that  religion  would  take  care  of  itself. 
There  were  others  who  had  assumed  another  basis — that  religion 
should  be  supported  for  the  good  of  society — that  it  was  a  duty  on 
society,  which  divided  itself  among  individuals,  in  proportion  to 
their  interest  in  society,  and  their  ability.  He  knew  it  was  a 
growing  sentiment,  that  religion  had  nothing  to  do  with  society. 
But  it  was  not  the  sentiment  of  this  Convention — and  the  duty  of 
the  Convention  now  was  to  carry  into  effect  the  sentiment  which 
they  had  expressed.  He  said  that  if  the  proposition  now  before 
the  committee  should  fail,  he  should  renew  that  which  he  had 
made  in  the  morning.  He  proceeded  to  state  the  substance  and 
effect  of  that  proposition,  and  to  recapitulate  his  reasons  in  favor 
of  it. 

Mr.  Wilde  explained  in  relation  to  what  he  had  before  said  on 
the  subject  of  the  law  of  1811,  and  replied  to  some  of  the  remarks 
of  the  gentleman  who  last  spoke.  He  objected  to  introducing  all 
the  provisions  of  that  law  into  the  constitution,  because  it  was  not 
wise  to  go  much  into  detail,  because  a  change  of  circumstances 
may  require  an  alteration  of  details,  and  because  there  were  certain 
provisions  of  the  law,  which  he  stated,  that  would  be  liable  to 
57 


450  MASSACHUSETTS    CONVENTION. 

great  abuses.     He  compared  the  proposition  of  the  gentleman  who 
last  spoke,  with   that  now  before   the  committee.     One  provided 
that    persons    belonging    to    other   societies   should   draw    out    the 
amount  of  their  taxes  assessed  in  the  parish   where  they  resided  ; 
the  other  exempted  such  persons  from  taxation,  with  the  essential 
provisions,  that  they  should  attend  and  contribute  to  the  mainte- 
nance of  public   worship  in  the  society  of  which  they  were  mem- 
bers.    He  thought  the  latter  proposition  was  not  liable  to  the  ob- 
jection founded  on  the    uncertainty  as  to    what   was   a  religious 
society.     If  it  was  an   objection,  the  third  resolution  of  the  select 
committee    was    liable    to    the    same    objection.      That    resolution 
makes  it  the  duty  of  the  Legislature  to  authorize  and  require  the 
several  towns,  parishes  and  religious  societies,  incorporated  and  un- 
incorporated, to  make  suitable  provision  at  their  own  expense  for 
the  institution  of  public  worship.     But  there  could  be  no  difficulty 
in  determining  whether  it  was  to  be  considered  as  a  religious  society 
in  the  meaning  of  the  article.     Another  objection  was  that  its  ope- 
ration would  not  be  equal.     He  had  entirely  misconceived  the  na- 
ture of  the  third  article,  if  this  argument  was  of  any  weight.     It 
was  immaterial,  if  one  town  had  a  thousand  dollars,  while  the  ad- 
joining  town  supported  religious  worship  without  a  cent.     Some 
religious  societies  were  rich  and  others  poor,  and  there  must  be  an 
inequality.     The  sole  object  of  the  article  was  that  every  town  and 
society  should  maintain  public  worship  and  public  teachers  of  piety, 
religion  and  morality  ;  and  it  was  immaterial  whether  it  was  done 
for  a  salary,  or  was  a  labor  of  love.     It  was  said  that  the  support  of 
this  resolution  was  inconsistent  with  a  regard  for  the  third  article. 
No   one  could  feel  a  greater  interest  than  he  had  in  this  article. 
What  was  the   object  of  the  article  ?     It  was  that  public  worship 
shall  be  supported.     This  resolution  provides  that  public  worship 
shall  be  supported,  and  it  includes  the  whole  community.     It  was 
objected  that  there  might  be  small  societies  to  defeat  the  intention 
of  the  article.     He  did  not  think  the  argument  was  assisted  by  sup- 
posing extreme   cases.     Five    persons    worshipping  in  one  family 
would  not  make  public  worship.     It  was  paying  a  small  compliment 
to  those  who  would  administer  the  laws  to  suppose  that  they  would 
permit  such  an  evasion  of  the   provision.     But  suppose  that  a  few 
families  were  to  unite  themselves  for  the  purpose  of  joining  statedly 
in  public   worship.     Where    would    be    the    harm  ?     Whose  right 
would  be  invaded  ?     Were  they  not  as  likely  to  be  benefited  as  if 
they  were  in  large  societies  ?     As  the  law  now  stands,  a  man  may 
join  a  religious  society  and  be  exempted  from  taxation  in  the  parish 
where  he  resided,  without  ever  attending  in  the  society  to  which  he 
united  himself,  and  without  contributing  one  cent  to  the  support  of 
it.     This  was  what  he  was  opposed  to,  and   it  was  for  that  reason 
that  he  objected  to  incorporating  the  law  into  the  constitution.     He 
was  willing   to  leave  the  third  article  as  he  found  it.     He  did  not 
wish   to  alter  one   paragraph   of   it.     Even  that  paragraph  which 
authorized  the  Legislature  to  enjoin  attendance  on  public  worship, 


MASSACHUSETTS     CONVENTION.  451 

in  his  mind  was  harmless.  But  he  was  willing  to  yield  to  the 
opinions  of  other  gentlemen  where  no  important  principle  was 
yielded.  He  thought  that  introducing  this  provision  would  greatly 
amend  the  law  of  1811,  and  would  guard  as  far  as  possible  against 
all  evils.     He  should  agree  to  the  resolution. 

Mr.  Foster  was  opposed  to  the  resolution.  He  thought  it  would 
destroy  the  effect  and  value  of  all  that  had  been  agreed  to.  The 
gentleman  last  speaking  had  objected  to  supposing  an  extreme  case. 
He  objected  to  supposing  a  society  of  five.  He  (Mr.  F.)  would 
suppose  a  society  of  twenty,  a  number  which  a  committee  of  the 
Convention  had  supposed  sufficient.  Three  families  would  constitute 
the  number.  What  Legislature  would  ever  compel  them  regularly 
to  support  public  worship  ?  If  they  attempted  to  compel  them,  the 
society  would  be  unable  to  do  it.  A  common  parish  might  be 
divided  into  half  a  dozen  such  societies,  and  not  one  of  them  would 
be  able  to  support  public  worship.  He  had  known  a  case  where  a 
person  went  half  a  day  to  meeting  for  three  years,  and  paid  a  quar- 
ter of  a  dollar  for  a  certificate  which  exempted  him  from  taxation 
in  the  parish  where  he  resided.  Rather  than  adopt  such  a  measure, 
he  would  go  home  and  say  that  they  could  do  nothing.  He  vastly 
preferred  the  proposition  of  the  gentleman  from  Concord.  All  de- 
nominations now  enjoyed  equal  rights,  and  this  was  all  that  could 
be  required.  How  was  it  possible  for  men  to  form  themselves  into 
society,  and  every  individual  to  retain  all  his  opinions  and  rights  as 
if  he  did  not  belong  to  any  society. 

Mr.  Dutton  said,  that  we  had  been  told  by  gentlemen  that  these 
resolutions  were  so  plain,  simple  and  definite,  that  there  could  be  no 
mistake  or  uncertainty  as  to  their  import.  They  did  not  so  appear 
to  his  mind.  The  first  resolution  creates  a  new  sort  of  corporations, 
unlike  any  that  now  exist,  and  unknown  to  the  law.  They  are 
quasi  corporations,  and  he  asked  gentlemen  to  define  their  proper- 
ties, the  extent  of  their  powers  and  duties.  Under  the  operations  of 
these  provisions,  cases  would  arise,  that  would  bring  before  our 
courts  questions  of  real  doubt  and  difficulty ;  and  there  would  be  a 
fruitful  crop  of  lawsuits,  about  which  we  have  heard  so  much 
lamentation.  By  the  second  resolution  it  is  provided  that  any  man 
may  go  from  one  society  to  another  without  furnishing  any  evidence 
of  the  fact.  The  assessors  of  a  parish  know  not  who  to  tax ;  the 
burden  of  proof  is  thrown  upon  them,  they  mast  proceed  at  then- 
peril,  and  if  they  make  a  mistake  a  lawsuit  ensues.  He  was  aware 
it  might  be  said  that  the  Legislature  might  provide  for  the  case.  It 
was  true  that  they  might,  and  it  was  also  true  that  they  might  not. 
It  had  been  objected  to  these  resolutions  that  any  man  might 
exempt  himself  from  the  payment  of  the  usual  parish  tax,  by  con- 
tributing a  trifle  to  one  of  these  voluntary  societies ;  and  this  objec- 
tion was  answered  by  the  reverend  gentleman  who  moved  the  reso- 
lution, that  he  would  never  receive  any  one  into  his  society  unless 
he  paid  as  much  as  he  had  been  accustomed  to  pay.  He  thought  it 
disgraceful.     He  was  willing  to  give  that  gentleman  full  credit  for 


452  MASSACHUSETTS    CONVENTION. 

his  good  intentions,  but  it  was  necessary  for  the  committee  to  see 
that  his  resolutions  executed  his  intentions.  Would  he  undertake 
to  answer  for  the  hundreds  in  the  State,  situated  as  he  himself  was, 
or  if  he  would  could  he  give  us  any  security  for  his  undertaking. 
The  resolutions  were  open  to  the  full  force  of  the  objection,  that  a 
small  number  might  form  one  of  these  anomalous  societies,  and 
exempt  themselves  from  the  support  of  a  regular  Christian  teacher. 
All  the  resolutions,  plain  and  definite  as  they  were  said  to  be,  were 
doubtful,  indefinite  and  uncertain.  This  of  itself  was  a  sufficient 
objection  to  their  adoption.  The  constitution  on  this  subject  he 
understood  ;  the  law  of  1811  he  understood  ;  they  had  been  tried, 
their  operation  had  been  felt  and  ascertained,  by  experience  and  the 
judgment  of  our  highest  court.  Much  had  been  said  of  vexatious 
and" oppressive  lawsuits — but  did  these  never  arise  from  any  other 
parochial  concerns,  such  as  highways,  schools,  &c.  ?  It  is  true  that 
individuals  and  parishes  do  sometimes  mistake  their  rights,  some- 
times demand  more  than  is  their  rights,  or  what  is  not  their  rights, 
and  go  to  law  under  improper  motives  and  feelings.  On  this  sub- 
ject he  would  suggest  one  expedient  to  those  gentlemen  who  were 
so  very  anxious  to  provide  against  all  abuses,  accidents  and  possi- 
bilities, to  insert  a  provision  in  the  constitution  that  no  man  or  cor- 
poration should  hereafter  mistake  their  rights,  demand  more,  or 
what  was  not  their  right,  and  should  never  resort  to  the  law  to 
gratify  their  passions. 

Mr.  Lincoln  of  Worcester  said  that  if  left  to  the  dictates  of  his 
own  understanding,  the  proposition  of  the  gentleman  from  Beverly, 
as  modified  by  the  gentleman  from  Boston,  would  be  the  last  that 
he  should  be  willing  to  vote  for ;  and  this  for  the  reasons  already 
given.  The  gentleman  from  Beverly  would  find  he  had  yielded 
more  than  he  intended,  and  the  gentleman  from  Boston  would  find 
that  he  had  gained  more  than  he  intended  ;  but  as  these  two  had 
agreed,  he  should  accede  to  their  proposition  on  the  ground  of  con- 
ciliation. This  was  called  a  religious  subject,  but  it  had  excited 
much  irreligious  feeling  ;  to  him  however  it  seemed  to  be  a  civil 
subject.  With  respect  to  the  plans  offered,  he  must  take  this  or 
some  other ;  he  should  not  attempt  to  vindicate  this  in  preference  to 
any  other.  Under  the  constitution  a  law  had  passed  which  goes 
vastly  further  than  this  proposition  for  destroying  all  obligations  for 
the  support  of  religious  worship.  It  had  been  decided  that  a  law 
was  constitutional  which  enabled  any  number  of  persons  to  consti- 
tute a  society,  if  there  were  but  enough  to  form  a  committee,  and  to 
be  exempted  from  taxes,  although  a  provision  for  public  worship  was 
not  made.  The  gentleman  from  Sturbridge  (Mr.  Leonard)  had 
been  procured  by  a  society  to  officiate  as  often  as  there  were  five 
Sundays  in  a  month.  He  was  plaintiff,  as  the  teacher  of  that  so- 
ciety, in  an  action  brought  to  recover  the  taxes  paid  by  a  member  to 
the  town  treasurer,  and  he  gained  his  cause.  The  present  propo- 
sition will  abridge  the  liberties  granted  under  the  constitution. 
Those  who  had  accepted  the  modification  had  deceived  themselves. 


MASSACHUSETTS    CONVENTION.  453 

If  he  understood  the  gentleman  from  Boston  (Mr.  Webster)  he  ob- 
jected to  this  proposition  that  it  did  not  secure  an  equality  of  con- 
tribution. There  never  was  such  an  equality.  In  the  town  of 
Boston  the  rich  man  paid  not  with  reference  to  his  property,  but  the 
goodness  of  his  pew.  If  it  was  meant  to  give  different  denomina- 
tions the  right  of  worshipping  according  to  the  dictates  of  their  con- 
science, they  ought  not  to  be  obliged  to  pay  equal  contributions. 
There  would  be  circumstances  to  warrant  different  salaries  for  their 
respective  teachers.  He  had  said  there  was  much  excitement  in 
respect  to  this  third  article  ;  he  said  so  still ;  and  not  only  to  alter 
but  also  to  retain  the  article.  He  agreed  with  the  gentleman  (Mr. 
Webster)  that  there  were  two  parties  ;  but  when  neither  could  be 
satisfied  it  was  better  to  take  a  medium — take  the  best  they  could 
obtain.  It  was  certain  that  men  did  work  themselves  up  to  a  belief 
that  it  was  a  matter  of  conscience  not  to  pay  for  the  support  of  a 
teacher  of  a  different  denomination,  though  he  agreed  it  was  not 
properly  so.  He  was  not  a  dissenter  himself — he  gloried  in  being  a 
Congregationalist  ;  but  he  had  a  respect  for  the  consciences  of  others 
and  was  willing  to  sacrifice  much  in  their  behalf.  He  wished  other 
gentlemen  to  make  some  concession — not  to  him — but  for  the  sake 
of  public  harmony  and  satisfaction. 

Mr.  J.  Phillips  of  Boston  wished  to  say  a  few  words  in  relation 
to  the  introductory  remarks  of  the  gentleman  who  had  just  spoken. 
He  (Mr.  Lincoln)  said  that  the  proposition  of  the  gentleman  from 
Beverly,  modified  at  the  request  of  the  gentleman  from  Boston,  was 
the  last  he  should  have  been  willing  to  receive — that  one  had  con- 
ceded more  than  he  knew,  and  the  other  had  taken  more  than  he 
intended — yet  if  they  were  contented  he  should  not  oppose.  Who 
were  they  ?  The  article  was  to  operate  not  upon  a  few  individuals 
in  this  house,  but  upon  the  whole  community.  He  thought  that 
the  gentleman  if  he  acted  upon  such  considerations  had  mistaken 
his  duty,  and  ought  to  revise  his  opinion.  Much  time  had  been  ex- 
pended in  debate  on  this  question — much  of  it  in  compliments  which 
were  of  no  use.  The  time  had  arrived  when  they  should  speak  in 
plain  language,  but  with  perfect  good  will.  The  proportion  of  Con- 
gregational parishes  was  as  450  to  150  of  all  other  denomina- 
tions. Suppose  that  the  150  go  to  the  root  of  the  question  and  say 
that  it  is  a  matter  of  conscience  not  to  be  taxed  for  the  support  of 
religious  worship.  The  450  differ,  and  say  that  it  is  not  a  matter 
of  conscience,  and  that  the  right  of  taxing  is  essential  to  the  happi- 
ness and  good  order  of  society.  W^ho  ought  to  submit  on  this  ques- 
tion ?  Certainly  the  minority  until  they  became  the  majority,  and 
then  he  as  one  of  the  minority  would  be  willing  to  submit.  Why 
should  they  go  on  to  modify  the  third  article  until  they  had  frittered 
away  all  its  essential  provisions  ?  One  party  would  never  be  satis- 
fied until  they  broke  down  the  great  principle  which  was  involved 
in  it.  He  contended  that,  it  was  useless  to  attempt  to  reconcile  the 
contradictory  views  of  the  two  parties  on  this  subject.  He  was  op- 
posed to  the  resolution. 


454  MASSACHUSETTS    CONVENTION. 

Mr.  Hoar  said  there  were  many  reasons  to  induce  him  to  vote 
against  this  proposition,  some  of  which  had  not  been  submitted  to 
the  committee.  If  it  was  true,  as  suggested  by  the  gentleman  in 
the  gallery  (Mr.  Lincoln)  that  certain  gentlemen  in  this  amendment 
conceded,  and  certain  other  gentlemen  gained  more  than  they  were 
aware  of,  this  was  a  sufficient  reason.  Whether  this  was  or  was 
not  the  case,  he  still  regarded  it  as  containing  not  only  the  seeds, 
but  the  whole  substance  of  the  dissolution  of  the  third  article.  The 
committee  had  now  come  to  the  very  point  which  occasioned  so 
much  delay  in  the  select  committee.  The  propositions  of  the  dif- 
ferent gentlemen  seemed  to  be  irreconcilable  in  their  nature.  One  side 
contends  that  government  has  no  right  to  interfere  for  the  support 
of  religious  worship.  Did  those  who  contended  so  earnestly  mean 
to  yield  this  principle  ?  He  believed  in  their  consistency  ;  that  they 
would  not  yield  it.  They  were  then  deceived.  Did  they  consider 
this  principle  as  relinquishing  that  ground  ?  If  so,  they  were  not 
deceived,  and  could  not  complain ;  but  would  they  remain  patient 
and  satisfied  with  this  proposition,  or  would  that  part  of  the  com- 
munity be  satisfied  whose  views  they  represented  ?  On  the  other 
hand,  would  it  be  yielded,  after  the  vote  which  has  been  already 
passed,  that  society  has  no  right  to  provide  by  law  for  public  wor- 
ship ?  He  could  not  believe  it  would  ever  be  yielded.  The  right 
of  self  government  would  as  soon  be  given  up.  The  first  was  as 
dear  and  as  important  to  us  as  the  last,  and  the  one  could  not  exist 
without  the  other.  Was  it  then  the  intention  of  gentlemen  to  re- 
gard this  proposition  as  a  compliance  with  the  great  principle  of  the 
third  article  already  adopted?  He  did  not  consider  it  as  a  com- 
pliance. A  small  society  may  meet,  and  while  religious  worship  is 
maintained,  government  cannot  interfere.  Suppose  forty  or  fifty 
persons  choose  to  assemble  every  Sabbath  and  alternately  offer 
prayers.  There  is  no  way  of  compelling  them  to  do  more.  Re- 
ligious worship  is  thus  maintained,  and  whatever  abuses  take  place 
the  Legislature  has  no  power  to  correct  them.  He  asked  gentlemen 
to  reflect  that  they  were  not  making  a  law,  which  could  be  repealed 
when  found  inconvenient,  but  a  provision  to  be  engrafted  into  the 
constitution.  What  would  be  the  situation  of  our  towns  ?  A  min- 
ister becomes  unpopular  ;  some  of  his  society  leave  him.  The  bur- 
den thereby  becomes  heavier  on  the  others,  and  this  induces  some 
of  them  to  leave  ;  so  that  half  a  dozen  only,  or  still  fewer  may  re- 
main. The  law  compels  the  town  to  support  public  worship  ;  is 
this  small  remainder  then  to  be  punished  because  public  worship  is 
not  maintained  in  that  town  ?  And  yet  he  did  not  know  how  this 
difficulty  was  to  be  avoided.  This  was  a  practical  reason — not  one 
of  the  imagination.  Such  instances  had  occurred,  and  might  occur 
again.  He  wished  to  avoid  this  inducement  for  going  from  one 
society  to  another.  It  was  said,  that  if  the  object  was  obtained,  it 
was  immaterial  whether  a  person  paid  as  much  at  the  second  so- 
ciety as  he  did  before.  He  apprehended  that  the  absolute  annihila- 
tion of  religious  societies  would  ensue.     Leave  the  power  to  the 


MASSACHUSETTS    CONVENTION.  455 

Legislature  to  prevent  this  evil,  and  he  would  be  content.  But  he 
thought  the  gentleman  who  introduced  this  proposition  never  would 
consent  to  this,  and  by  his  proposition  the  Legislature  would  not 
have  the  power.  It  was  said  they  were  under  the  necessity  of 
adopting  this  or  some  other  proposition,  which  had  been  submitted. 
He  thought  not.  There  was  another  alternative.  They  might 
leave  the  constitution  where  they  found  it.  They  knew  the  evils 
of  this  and  that  they  were  scarcely  ever  complained  of.  They  did 
not  know  what  might  be  the  effect  of  the  new  and  untried  system. 
Until  it  should  be  demonstrated  that  good  would  flow  from  it,  they 
ought  to  adhere  to  the  old  provisions  of  the  constitution. 

Mr.  Austin  of  Boston  said,  that  when  the  proposition  of  the  gentle- 
man from  Beverly  was  first  made,  it  was  not  very  palatable,  and  that 
as  now  modified  it  was  totally  inoperative  in  regard  to  the  support 
of  public  worship.  He  was  surprised  and  gratified  to  hear  so  much 
respect  paid  to  the  law  of  1811.  There  was  a  time  when  that  and 
every  other  act  of  that  period  received  but  little  favor.  He  was 
glad  that  one  good  thing  could  come  out  of  Nazareth.  Good  as  the 
law  was,  however,  he  had  rather  have  it  a  law  than  a  part  of  the 
constitution.  The  general  principle  of  it  we  understood  ;  we  knew 
its  operation.  The  state  of  society  may  render  some  changes  nec- 
essary in  its  details.  He  was  willing  to  trust  this  to  the  Legisla- 
ture. There  was  no  danger  that  they  would  not  consult  the  will 
of  the  people.  If  the  third  article  remained,  its  abuses  would  be 
remedied  by  the  Legislature,  who  were  entrusted  with  power  in 
respect  to  the  details  on  subjects  equally  dear  and  important  to  us. 
He  considered  the  principle  of  the  third  article  worthy  to  be  pre- 
served, and  so  the  committee  had  determined  by  a  large  majority. 
He  implored  them  not  to  fritter  it  away  ;  not  actually  to  repeal  it. 
The  proposition  before  the  committee  gave  power  to  every  little 
community  of  three  or  five  persons  the  rights  of  a  large  corporation. 
He  asked  if  religious  instruction  could  be  so  well  disseminated  by 
these  little  societies.  They  could  not  and  would  not  pay  for  in- 
struction. It  would  be  an  evasion.  Instead  of  attending  public 
worship  once  in  a  month,  whenever  a  month  had  five  Sundays  in 
it,  they  would  attend  once  in  a  year,  whenever  there  were  twenty- 
nine  days  in  February.  Religion  will  not  take  care  of  itself;  it  re- 
quires money.  When  corporations  were  established,  it  was  usual  to 
put  guards  upon  them.  Here  hundreds  of  societies  were  to  be  in- 
corporated by  the  constitution  without  any  guards,  and  it  was  his 
apprehension  that  they  would  be  found  doing  devil's  work,  rather 
than  the  work  of  God.  It  had  been  said  that  an  alteration  of  the 
third  article  was  demanded  by  the  voice  of  public  opinion.  This 
was  refuted  by  the  equal  vote  given  in  the  morning.  He  thought 
that  no  change  was  necessary — that  the  Legislature  could  remedy 
all  evils  arising  under  the  article,  and  that  its  operation  on  a  man's 
conscience  affected  only  that  part  of  it  which  was  situated  in  his 
pocket. 

Mr.  Saltonstall  said  the  subject  had  been  long  under  debate, 


456  MASSACHUSETTS    CONVENTION. 

and  there  had  been  symptoms  of  impatience,  but  we  had  better  sit 
quietly  till  midnight — till  morning — than  be  driven  to  a  decision 
which  would  be  unsatisfactory  to  ourselves  and  to  the  community. 
When  the  report  of  the  select  committee  was  introduced,  he  had 
offered  a  resolution  which  proposed  not  to  alter  the  third  article, 
except  by  substituting  the  word  "  Christian"  for  "  protestant." 
This  was  afterwards  amended  on  the  motion  of  his  friends — it  was 
not  capable  of  division,  and  he  preferred  it  should  be  voted  down, 
as  he  knew  his  friend  from  Concord,  (Mr.  Hoar,)  was  about  intro- 
ducing one  like  his  own  originally,  and  this  was  the  reason  of  his 
not  replying  to  the  gentleman  from  Worcester.  This  has  also  been 
postponed  for  that  now  under  consideration,  which  has  been  amend- 
ed by  those  whose  views  he  had  thought  similar  to  his  own,  but 
which  he  felt  bound  to  oppose.  The  subject  is  of  immense  mag- 
nitude— of  infinite  importance  to  the  people  of  this  Commonwealth 
for  time — for  eternity  !  No  vote  has  given  so  much  satisfaction  to 
a  large  majority  of  this  House,  and  of  the  whole  community,  as 
that  by  which  we  resolved  substantially  to  retain  the  constitutional 
provision.  It  was  a  noble  resolution — and  shall  we  now  annul  it 
by  an  inconsistent  resolve  ?  It  has  heretofore  been  a  settled  prin- 
ciple, not  to  alter  the  constitution,  unless  a  large  majority  was  for 
the  change.  We  have  said  the  presumptions  are  all  in  its  favor — 
but  upon  this  subject  the  order  is  inverted ;  as  to  the  third  article  it 
must  be  struck  out,  unless  a  large  majority  is  for  retaining  it !  And 
we  are  called  upon  to  select  from  among  the  amendments,  and  this 
by  gentlemen  who  are  satisfied  with  the  article  as  it  stands  !  Where 
is  the  consistency  of  first  resolving  to  retain  this  provision,  and  then 
adopting  an  amendment  which  will  take  away  its  effect — at  least 
all  good  effect  ?  What  will  be  the  situation  of  our  parishes  ?  We 
oblige  them  to  support  a  public  teacher,  and  then  put  it  out  of  their 
power  to  do  it.  To-day  a  minister  is  settled  with  unanimity — to- 
morrow, one  man  is  dissatisfied — this  disaffects  another,  a  third 
takes  a  freak,  and  a  voluntary  society  starts  up — and  another  per- 
haps ;  this  increases  the  difficulty,  and  the  parish  is  broken  up. 
This  resolution  holds  out  a  lure — offers  every  inducement  to  people 
to  cherish  discontent  and  division.  Heretofore  the  policy  of  our 
system  has  been  different.  It  has  been  for  the  interest  of  all  to  pro- 
mote harmony,  and  the  minority  in  the  settlement  of  a  minister 
have  generally  united  with  the  majority — but  now  they  will  with- 
draw, and  form  a  new  society,  or  sign  off  as  it  is  expressed,  to  one 
of  those  associations  who  raise  their  money  by  voluntary  subscrip- 
tion, and  where  they  may  pay  what  they  please — a  shilling  or 
nothing  !  Conscientious  scruples,  already  so  plenty,  will  greatly 
increase.  Tax  me  so  much  again,  and  I  will  become — any- 
thing to  avoid  it,  will  be  the  language  of  many.  The  third  article 
will  only  impose  a  burden  upon  the  conscientious  part  of  the  com- 
munity, who  will  not  evade  the  true  intention  of  the  constitution 
and  laws.  Mr.  S.  said  there  had  been  many  frauds  and  abuses 
under  the  law  of  1811,  and  related  some,  and  observed  that  it   was 


MASSACHUSETTS    CONVENTION.  457 

not  in  the  power  of  the  most  respectable  and  best  intentioned  minis- 
ters to  prevent  them.  Is  the  resolution  to  put  an  end  to  doubts  and 
controversies  ?  It  is  full  of  uncertainties.  The  first  part  authorizes 
every  society  to  raise  money,  &c.  What  sort  of  creatures  will  these 
corporations  be?  Will  they  be  corporations?  Will  actions  lie 
against  them  ?  How  are  meetings  to  be  "warned  and  held  accord- 
ing to  law  ?'"  Is  not  the  object  really  to  obtain  power  in  this  in- 
direct manner,  to  raise  money  by  force  of  law  ?  We  heard  a  great 
deal  the  other  day  about  law  religion]  and  compulsory  processes  ! 
"  Not  a  cent  would  I  receive,"  said  a  reverend  gentleman,  "  unless 
it  was  given  voluntarily !"  It  will  be  wholly  uncertain  to  what  so- 
ciety people  belong — now  they  must  produce  a  certificate,  but  this 
is  thought  degrading,  and  the  parishes  are  to  take  all  the  risk,  and 
the  individual  may  prove  in  any  way  that  he  belongs  to  another 
society.  An  excellent  way  to  put  an  end  to  lawsuits,  of  which  we 
have  heard  so  much  ! 

And  what  is  "public  worship?"    At  present,  societies  must  main- 
tain public  teachers  of  "  piety,  religion,  and  morality  ;  " — the  diffu- 
sion of  which  is  the  great  object  of  the  constitution :  but  if  half  a 
dozen  meet  together  to  read  the  Bible  or  a  religious  newspaper,  it 
will  be  within  this  resolution.     This  may  become  a  fashionable 
mode  of  complying  with  the  constitutional  provision — it  will  cer- 
tainly be  a  cheap  one     How  is  the  constitution  to  be  enforced  ? 
What  process  will  lie  against  these  societies  ?     It  is  all  doubt  and 
perplexity,  and  for  one  lawsuit   we  shall  have  twenty.     Another 
circumstance  and  more  than  all  the  rest  is,  that  all  the  religious  so- 
cieties will  at  once  be  set  afloat.     "  Every  person  shall  have  full 
liberty  of  uniting  himself  with  what  society  he  may  choose,  and 
every  person  neglecting  to  unite,  &c.  shall  be  liable  to  be  taxed." 
Is  not  this  deposing  all  our  religious  establishments?     And  what 
privilege  will  it  be  to  tax  such  as  neglect  to  unite  with  some  soci- 
ety ?     Who  would  rush  into  a  multitude  of  suits  to  settle  the  ques- 
tion ?     We   have  heard  something  about   public  excitement,  and 
gentlemen  have  addressed  themselves  to  our  fears.     What  have  we 
to  do  with  public  excitement  ?     We  are  sent  here  to  revise  the  con- 
stitution.    We  are  to  do  our  duty,  and  not  propose  alterations  when 
we  think  they  are  not  necessary,  from  any  such  influence.     We  are 
to  consult  our  own  consciences — our  own  understandings — not  our 
fears,  nor  to  regard  any  excitement  abroad,  should  it  exist.     But 
there  is  none — we  see  nothing  of  it.     This  Convention  would  not 
have  been  called,  except  on  account  of  the  senate.    There  is  no  ex- 
citement— there  is  no  cause  of  any — no  oppression — no  abuses  for 
many  years — never  any  to  excite   any   general  discontent — never 
any  for  which  the  constitution  is  responsible.     A  part  of  the  commu- 
nity have  recently  set  up  an  alarm — but  the   great  majority  are 
quiet.    We  are  free — we  have  all  had  perfect  freedom  of  conscience. 
The  excitement  is  got  up  here — we  have  reared  it  ourselves,  and 
gentlemen  may  work  themselves  up  to  a  belief  that  they  have  been 
slaves !     "  Ease  us  of  our  burthen,"   says  a  reverend   gentleman. 
58 


458  MASSACHUSETTS    CONVENTION. 

There  are  no  burthens.  -'Toleration''  is  a  word  that  does  not 
apply  here — all  are  put  on  the  same  level  by  the  constitution — that 
puts  it  out  of  the  power  of  man  to  establish  ecclesiastical  tyranny. 
It  cannot  exist.  That  is  our  security.  But  one  would  suppose  from 
the  debates  that  we  had  been  manacled — that  tortures,  faggots,  the 
stake,  were  common  instruments  of  punishment,  and  that  an  auto- 
de-fe  burning  a  few  heretics,  was  an  occasional  offering  for  the 
amusement  of  the  standing  order !  Let  us  make  use  of  our  own 
senses  and  understandings,  and  whatever  excitement  may  be  raised, 
do  our  duty — "  fiat  justitia,  mat  caelum." 

Mr.  Williams  replied  to  some  of  the  remarks  of  the  gentleman 
who  spoke  last,  and  answered  a  number  of  objections  made  by  other 
gentlemen  to  the  resolution.  He  denied  that  there  was  a  great  deal 
of  detail  in  it.  He  said  that  it  was  intelligible,  and  that  common 
sense  would  dictate  what  was  meant  by  "religious  society."  He 
did  not  believe  that  persons  would  take  advantage  of  the  expedient 
of  forming  small  societies  to  avoid  payment  of  taxes.  He  knew 
of  no  such  instances.  As  far  as  his  observation  extended,  he  knew 
that  those  who  had  engaged  voluntarily  in  the  societies  to  which 
they  belong,  paid  more  money  for  the  support  of  public  worship 
than  they  did  in  the  parishes  in  which  they  resided. 

Mr.  Webster  said  that  if  any  apology  were  wanted  for  troubling 
the  committee  again,  he  thought  he  might  find  it  in  the  present  at- 
titude of  this  debate.  A  vote  of  the  Convention  had  decided,  after 
full  and  free  discussion,  that  that  part  of  the  constitution  which  au- 
thorizes the  Legislature  to  enable  towns  and  parishes  to  tax  their 
inhabitants  for  the  purpose  of  maintaining  public  worship,  should 
not  be  struck  out.  He  himself  had  taken  no  part  in  that  discussion. 
He  was  content  with  the  constitution  as  it  was,  however,  with  the 
laws  which  had  been  passed  under  it,  and  the  judicial  construction 
which  those  laws  had  received.  But  the  general  principle  being 
thus  settled,  the  gentleman  from  Beverly  had  proposed  a  modifica- 
tion, which  he  (Mr.  Webster)  thought,  and  others  thought,  would 
go  to  do  away  that  principle  altogether,  and  render  the  whole  arti- 
cle a  dead  letter.  The  gentleman  from  Beverly  was  quite  consist- 
ent in  this.  He  wished  the  whole  article  done  away.  If  that  pur- 
pose had  not  been  effected  in  one  way,  it  was  quite  fair  for  him  to 
try  another  way,  and  to  do  that  indirectly,  which  he  had  not  been 
able  to  do  directly.  No  man  saw  his  object  more  clearly,  or  fol- 
lowed it  more  steadily,  than  the  member  from  Beverly.  But  what 
gave  so  singular  a  complexion  to  this  question  was,  that  the  honor- 
able member  from  Boston  and  the  honorable  member  from  Newbu- 
ryport,  both  of  whom  had  been  advocates  for  the  general  principle, 
afforded  their  support  to  the  present  proposition — called  it  a  com- 
promise, and  an  amicable  arrangement;  and  another  honorable  gen- 
tleman had  congratulated  the  House  on  this  happy  termination 
of  all  our  labors  on  this  subject,  through  the  joint  counsels  of  the 
member  from  Beverly  and  the  member  from  Boston.  Now  the 
truth  is.  that  nine  out  of  ten  of  all  those  members  who  have  sup- 


MASSACHUSETTS    CONVENTION.  459 

ported  "the  general  principle  of  the  article, — who  have  stood  shoulder 
to  shoulder  in  its  defence,  against  the  powerful  attacks  of  the  gen- 
tleman from  Beverly  and  others,  believe  that  the  present  happy 
arrangement  gives  up  the  whole  principle,  and  defeats  all  their 
object.  Much  had  been  said  about  concession  and  accommodation. 
But  he  trusted  gentlemen  would  consider  that  there  were  various 
opinions,  and  there  was  to  be  a  consultation  of  the  sentiments  of 
one  side,  as  well  as  of  the  other.  Whatever  was  conceded  to  one 
opinion,  was  against  the  feelings  of  those  who  held  the  other  opin- 
ion. It  had  been  supposed  to  be  discreet  usually  to  follow  the  old 
maxim,  which  might  be  found  in  the  manual  on  the  chairman's 
table,  not  to  put  the  child  to  an  enemy  to  be  nursed — yet.  on  this 
occasion,  it  was  proposed  to  receive  from  the  member  from  Beverly, 
a  mode  of  executing  and  effecting  a  provision,  to  winch  provision 
that  gentleman  was  known  to  be  entirely  hostile.  There  might  be 
much  of  magnanimity  in  this,  but  he  did  not  see  much  of  common 
prudence.  He  begged  therefore  the  member  from  Newburyport  to 
consider,  not  only  to  whom,  but  from  whom,  he  was  making  these 
concessions.  That  honorable  member  had  decidedly  expressed  his 
own  satisfaction  with  the  third  article  as  it  at  present  stood,  with- 
out any  amendment  whatever.  He  professed  to  be  acting  on  this 
occasion,  from  a  desire  to  satisfy  others.  He  begged  the  gentleman 
would  consider,  that  while  some  might  rejoice  in  this  course  of 
things,  others  would  lament  it ;  and  it  was  for  his  own  determina- 
tion, how  far  he  would  oppose  the  steady  friends  of  the  main  ques- 
tion, in  order  to  conciliate  its  steady  and  systematic  opposers. 
There  was  another  part  of  the  speech  of  the  member  from  Newbu- 
ryport, on  which  he  would  remark.  He  (Mr.  Webster)  had  asked 
whether,  under  this  provision,  any  three  persons,  or  five  persons, 
uniting  together  and  paying  a  shilling  a  year,  would  not  be  a  soci- 
ety, within  this  provision,  so  as  to  be  exempt  from  all  other  taxa- 
tion ?  The  honorable  member,  in  answer,  had  said  he  doubted 
whether  such  an  association  would  be  a  constitutional  society,  under 
this  amendment — and  if  he  doubt  whether  three  or  five  persons 
would  constitute  such  a  society,  he  probably  may  doubt  whether  ten 
or  fifteen,  or  twenty  would  do  it — and  if  he  doubt  on  that  question 
here,  he  will  doubt,  probably,  when  the  question  shall  be  brought 
before  him  as  a  judge — and  if  the  judge  doubt,  the  jury  will  proba- 
bly doubt — and  if  judges  and  juries  doubt,  everybody  may  well 
doubt ; — and  then  what  becomes  of  that  certainty  and  preciseness, 
which  this  most  fortunate  arrangement  would  introduce  into  the 
constitution  ?  He  (Mr.  Webster)  had  contended  that  the  present 
proposition  went  to  establish  a  great  inequality.  He  had  asked 
whether,  under  this  provision,  while  one  man  may  be  compelled  to 
pay  ten  dollars,  another  man  of  equal  property,  might  not  be  ex- 
cused by  the  payment  of  as  many  cents  ?  To  this  question  the 
honorable  member  had  given  only  this  answer, — that  the  equality 
to  be  maintained,  was  not  an  equality  of  expense,  but  an  equality  in 
the  quantity  of  religious  instruction.     He  was  wholly  dissatisfied 


460  MASSACHUSETTS    CONVENTION. 

with  this  answer.     How  did  the  honorable  member  expect  this  in- 
struction to  be  obtained  ?     It  had   been  most   forcibly  asked,   in 
another  place,  whether  Ave  expected  angels  to  be  sent  down  to  in- 
struct us,  or  manna  to  be  rained  from  heaven  for  the  support  of  our 
instructors.     Does  not  the  honorable  member,  and  everybody  else, 
know  that  the  quantity  of  instruction  must  be,  in  evey  community, 
proportionate  to  the  pains  taken  and  the  expense  incurred  for  it  ? 
When  the  constitution  speaks  of  a  support  for  teachers  of  religion 
and  morality,  does  it  not  mean  a  pecuniary  support  ?     When  it 
speaks  of  a  provision,  in  this  respect,  does  it  not  mean  a  pecuniary 
provision  ?     When  it  speaks  of  the  expense  to  be  incurred  for  such 
objects,  does  it  mean  an  expense  of  prayers  and  supplications  for  the 
interposition  of  miracles,  or  does  it  mean  a  pecuniary  expense  to 
maintain  religious  and  moral  instructors  ?     It  was  too  clear  to  be 
argued  that  there  could  be  no  equality,  unless  there  was  a  security 
that  one  man,  of  a  given  amount  of  property,  should  pay  as  much 
as  his  neighbor  of  the  same  amount  of  property.     It  had  been  asked 
by  the  honorable  member,  again  and  again,  whether  all  sects  might 
not  raise  money  in  any  manner  they  chose  ?    That  was  not  the  true 
question.    The  question  is,  may  they  all  raise  it  in  whatever  amount 
they  choose ;  so  that  while  one  half  the  town  or  parish  are  com- 
pelled to  pay  at  a  certain  fixed  rate,  the  other  half  may  pay  at  what- 
ever rate  they  choose — this  was  the  real  question.     In  short,  the 
effect  of  the  proposition  was  to  put  it  into  the  power  of  half  a  dozen 
rich  men  in  a  parish  to  form  one  of  these  new  created  societies,  and 
pay  a  dollar  a  year,  while  all  the  expense  of  maintaining  public 
worship  and  religious  instruction  should,  in  effect,  be  thrown  on 
others.     He  was    therefore  decidedly  opposed  to  the   proposition. 
Either  the  whole  provision  ought  to  be  struck  out,  or  else  it  ought 
to  be  made  to  bear  equally.     He  could  not  consent  to  tax  one  half 
of  the  community  for  a  common  object  and  leave  it  to  the  discre- 
tion of  the  other  half  to  tax  themselves  or  not,  as  they  might  please. 
If  religious  instruction  was  to  be  had,  and  to  be  paid  for,  it  ought 
to  be  equally  paid  for :  and  if  the  general  provision  could  not  be  re- 
tained, except  with  such  modifications  as  destroyed  all  equality  of 
contribution,  he  was  in  favor  of  striking  it  out  altogether.     He  was 
therefore   more  decidedly  hostile  to  this  proposition  than  to  that  of 
the  honorable  member  from  Pittsfield.     He  would  only  add,  that  he 
had  often  heard  of  the  capitulation  of  those  who  were  vanquished, 
and  of  the  surrender,  at  discretion,  of  those  who  could  hold  out  no 
longer.     He  remembered,  however,  a  few  cases  in  which  those  who 
had  struggled  successfully  in  an  important  contest,  had  neverthe- 
less, in  the  very  moment  of  victory,  surrendered  at  discretion. 

The  question  was  then  taken  on  the  resolution,  and  lost — 179  to 
186. 

The  committee  then  rose,  reported  progress,  and  had  leave  to  sit 
again. 

At  8  o'clock  the  Convention  adjourned. 


MASSACHUSETTS    CONVENTION.  461 

Thursday,   December  28. 

The  House  was  called  to  order  a  few  minutes  after  9  o'clock, 
and  attended  prayers  offered  by  the  Rev.  Mr.  Palfrey ;  after  which 
the  journal  of  yesterday  was  read. 

Mr.  Varnum's  motion  to  rescind  that  part  of  one  of  the  rules  of 
the  Convention,  which  makes  a  question  to  strike  out  and  insert 
indivisible,  was  taken  up. 

Mr.  Varnum  observed  that  he  did  not  know  whence  this  rule 
came  ;  it  might  have  been  one  of  the  rules  of  our  house  of  repre- 
sentatives. It  was,  however,  attended  with  inconveniences.  A  dif- 
ferent rule  was  practised  upon  in  both  houses  of  Congress,  and  had 
been  found  to  be  convenient.  There  the  part  to  strike  out  is  first 
put ;  if  it  is  decided  in  the  negative,  the  other  part  falls  of  course  ; 
but  if  in  the  affirmative,  then  the  matter  offered  by  the  mover,  or 
any  other  matter,  may  be  inserted. 

Mr.  Pickman  supported  the  motion. 

The  question  was  then  taken,  and  the  motion  agreed  to. 

Mr.  Varnum  said  he  thought  the  House  had  sufficient  experience 
that  nothing  was  to  be  gained  by  having  an  afternoon  session.  It 
would  be  better  to  prolong  the  forenoon  session  to  a  later  hour. 
With  a  view  therefore  of  having  but  one  session  a  day,  he  moved 
that  in  future  the  House  should  meet  at  10  o'clock. 

After  a  slight  debate,  -it  was  voted  that  when  the  House  ad- 
journed, it  should  adjourn  to  half-past  9  o'clock,  to-morrow  morning. 

Mr.  Boylston  of  Princeton,  at  the  suggestion  of  Mr.  Adams  of 
Q,uincy,  who  was  absent,  offered  a  resolution  proposing  to  alter  the 
constitution,  so  that  instead  of  "  every  denomination  of  Christians  " 
&c.  it  should  read,  "  all  men,  of  all  religions,  demeaning  themselves 
peaceably,  and  as  good  subjects  of  the  Commonwealth,  shall  be 
equally  under  the  protection  of  the  law."  Referred  to  the  com- 
mittee on  the  declaration  of  rights. 

Declaration  of  Rights. — On  motion  of  Mr.  Dana,  the  House  went 
into  committee  of  the  whole  on  the  unfinished  business  of  yester- 
day, Mr.  Varnum  in  the  chair. 

The  question  was  upon  the  fourth  resolution  of  the  select  com- 
mittee. 

Mr.  Dana  made  a  motion  for  taking  the  question  upon  the  first 
part  of  the  resolution,  excluding  both  provisos.  The  chairman 
thought  the  question  was  not  divisible. 

Mr.  Hoar  of  Concord  said  the  committee  had  spent  a  great  deal 
of  time,  without  making  any  progress,  in  considering  proposition 
after  proposition  for  a  change  in  the  third  article.  To  bring  it  to  a 
test,  whether  a  majority  of  the  committee  were  in  favor  of  making 
any  further  alteration  m  that  article,  he  would  move  that  the  com- 
mittee rise,  report  the  progress  it  had  already  made,  request  to  be 
discharged  from  the  further  consideration  of  the  fourth  resolution, 
and  ask  leave  to  sit  again  on  the  other  resolutions  committed  to 
them. 

The  motion  was  carried — 1S1  to  120. 


462  MASSACHUSETTS     CONVENTION. 

The  committee  reported  its  disagreement  to  the  first  resolution  of 
the  select  committee,  and  its  agreement  to  the  second  and  third,  and 
was  discharged,  and  had  leave  to  sit  again  in  conformity  to  Mr. 
Hoar's  motion. 

Leave  of  absence  was  given  to  Messrs.  Kendall  of  Westminster, 
and  Valentine  of  Hopkinton. 

The  House  again  resolved  itself  into  a  committee  of  the  whole 
on  the  declaration  of  rights. 

The  fifth  resolution  of  the  select  committee,  proposing  a  change 
in  the  twelfth  article,  so  that  in  criminal  prosecutions  every  person 
shall  be  fully  heard  in  his  defence  by  himself  and  (instead  of  or) 
his  counsel  was  agreed  to  without  debate. 

The  sixth  resolution,  proposing  to  alter  the  seventeenth  article  so 
as  to  say  that  armies  ought  not  to  be  maintained  without  the  consent 
of  the  Legislature,  and  in  conformity  to  the  constitution  of  the  United 
States,  was  agreed  to  without  debate. 

The  seventh  resolution,  proposing  to  alter  the  twenty-third  article 
so  that  no  subsidy,  &c.  shall  be  levied  without  the  consent  of  the 
people  or  their  representatives  (instead  of  representatives  in  the  Leg- 
islature) was  adopted  without  debate. 

The  eighth  resolution,  proposing  to  alter  the  twenty-seventh  arti- 
cle, so  that  in  time  of  peace  no  soldier  ought  to  be  quartered,  &c. 
and  in  time  of  war  such  quarters  ought  not  to  be  made  but  by  the 
civil  magistrate  in  a  manner  ordained  by  law  (instead  of  by  the  Leg- 
islature) was  read. 

Mr.  Webster  said  he  thought  these  resolutions  ought  not  to  be 
passed  without  knowing  the  reasons  for  the  several  alterations  pro- 
posed. He  wished  some  gentleman  of  the  select  committee  would 
state  them. 

Mr.  Blake  said  the  object  of  the  alteration  proposed  in  this  and 
some  of  the  other  resolutions,  was  to  do  away  the  repugnance  in 
those  parts  of  our  constitution  to  the  constitution  and  constitutional 
laws  of  the  United  States. 

Mr.  Webster  said  that  alterations  for  that  purpose  were  injudi- 
cious. If  any  part  of  our  constitution  was  repugnant  to  the  constitu- 
tion of  the  United  States  it  was  rendered  invalid  by  the  adoption  of 
that  constitution,  and  would  do  no  harm  if  it  remained.  The  reso- 
lutions would  make  one  suppose  that  these  principles  had  never  ex- 
isted in  our  constitution.  The  proposed  changes  worked  no  altera- 
tion in  the  substance  of  the  constitution  ;  they  were  too  unimportant 
to  be  made,  and  would  require  a  great  deal  of  trouble  to  explain  them 
to  the  people. 

Mr.  Sullivan  of  Boston  was  of  the  same  opinion.  The  consti- 
tution was  very  proper  at  the  time  it  was  made,  and  since  the  adop- 
tion of  the  constitution  of  the  United  States  it  had  received  a  prac- 
tical construction  which  rendered  such  alterations  unnecessary. 

Mr.  Blake  said  the  alteration  would  remove  doubts,  if  any  existed  ; 
the  revised  constitution  of  Pennsylvania  had  adopted  alterations  of 
this  sort. 


MASSACHUSETTS     CONVENTION.  463 

Mr.  Parker  said  that  if  by  misfortune  we  should  ever  cease  to  be 
governed  by  the  constitution  of  the  United  States  we  should  want 
our  constitution  as  it  now  is. 

Mr.  Sibley  of  Sutton  spoke  in  favor  of  the  amendments. 

Mr.  Jackson  said  he  had  understood  from  one  of  the  select  com- 
mittee that  these  amendments  were  proposed  on  the  supposition  that 
a  new  draft  of  the  constitution  would  be  made.  That  was  the  case 
in  respect  to  the  constitution  of  Pennsylvania.  The  alterations  were 
wholly  unnecessary.  It  would  be  asking  the  people  whether  they 
would  consent  to  any  part  of  the  constitution  of  the  United  States 
which  was  repugnant  to  our  own.     The  matter  was  already  settled. 

Mr.  Lincoln  of  Worcester  said  a  change  in  the  phraseology  might 
cause  it  to  be  supposed  that  a  different  construction  was  necessary, 
when  no  alteration  in  the  sense  was  intended. 

Mr.  Blake  said  the  alterations  were  made,  as  had  been  mentioned, 
on  the  supposition  of  a  new  draft. 

The  question  was  taken  upon  the  resolution  and  decided  in  the 
negative. 

The  ninth  resolution  proposing  a  change,  on  the  same  ground,  in 
the  twenty-eighth  article,  was  negatived. 

The  votes  adopting  the  sixth  and  seventh  resolutions  were  recon- 
sidered and  reversed. 

Mr.  Keyes  of  Concord  moved  a  reconsideration  of  the  vote  adopt- 
ing the  fifth  resolution. 

Mr.  Hubbard  inquired  whether  there  had  not  been  a  construction 
that  or  his  counsel  in  that  part  of  the  constitution  meant  and,  &c. 

Mr.  Parker  said  it  was  generally  permitted  to  the  prisoner  in  any 
criminal  case  to  speak  by  himself,  as  well  as  by  his  counsel,  but  per- 
haps it  was  not  a  right :  in  capital  cases  it  was  never  refused.  It 
was  better  in  some  cases  that  it  should  be  left  to  the  discretion  of 
the  judge.  There  were  instances  of  prisoners  drawing  up  long 
speeches  which  were  mere  rhodomontade,  having  no  connection  with 
the  cause  and  sometimes  tending  to  their  own  injury.  If  the  amend- 
ment is  made,  the  court  and  jury  must  hear  all  this  without  any 
remedy. 

Mr.  Jackson  said  this  was  a  case  for  legislative  provision.  If  an 
instance  of  injustice  should  occur,  the  Legislature  would  make  the 
provision,  and  if  found  inconvenient,  it  could  be  repealed. 

Mr.  Austin  of  Boston  said  he  knew  there  was  great  liberality  in 
our  courts,  but  he  thought  this  was  a  right  which  ought  to  be 
secured  in  the  constitution.  He  had  rather  see  the  right  abused 
than  have  a  man  sent  to  the  state  prison  without  being  fully  defended. 
He  had  known  cases  where  some  things  had  escaped  the  attention  of 
ingenious  counsel,  and  the  prisoner  was  acquitted  upon  the  relation 
of  facts  within  his  own  knowledge. 

Mr.  Dana  said  the  great  complaint  of  judges  and  juries  was.  that 
too  much  was  said  in  trials  ;  a  great  deal  that  was  irrelevant.  No 
provision  on  this  subject  ought  to  be  in  the  constitution  :  it  should 
be  left  entirely  to  the  Legislature. 


464  MASSACHUSETTS    CONVENTION. 

Mr.  Dawes  said  he  had  had  twenty  years'  experience  as  a  judge  in 
the  Boston  Municipal  Court ;  when  prisoners  had  no  counsel,  he  had 
told  them  they  might  speak,  but  that  they  were  not  obliged  to  :  and 
sometimes  he  had  told  them  they  had  better  not.  Sometimes  the 
man  himself  tells  a  long  story  which  has  nothing  to  do  with  the 
evidence  and  frequently  hurts  himself.  Whenever  they  speak  after 
counsel,  they  generally  hurt  themselves.  It  was  better  to  leave  the 
subject  to  the  discretion  of  the  court. 

Mr.  Austin  of  Charlestown  made  an  appeal  to  the  humanity 
of  gentlemen  and  hoped  it  would  not  be  unheard.  He  was  sorry  to 
differ  from  the  learned  judges  who  had  spoken.  He  presumed  in- 
conveniences would  attend  giving  this  right  to  a  man,  to  be  heard 
by  himself  as  well  as  by  his  counsel,  but  it  was  a  fact  that  persons 
accused  were  borne  down  by  the  weight  of  the  government,  Avheth- 
er  they  were  innocent  or  guilty.  The  public  prosecutor  opens 
upon  the  prisoner  with  all  his  might,  as  if  it  was  his  duty  to  convict. 
The  jury  are  prejudiced  by  it  and  perhaps  the  judge.  Under  these 
circumstances,  if  a  man  was  not  allowed  to  speak  himself,  it  was  an 
injury.  If  he  was  innocent,  he  must  be  eloquent.  There  ought  to 
be  a  balance  to  the  weight  of  the  government.  It  was  founded  in 
cruelty  that  a  man,  in  cases  affecting  his  life  or  character,  should  not 
have  the  power  of  speaking  in  the  last  resort.  He  would  not  give 
the  government  the  closing  word.  There  were  other  cases  where 
this  privilege  was  as  important  as  it  was  in  capital  cases.  He  should 
prefer  taking  up  a  little  time  of  the  court  and  jury.  A  long  time 
was  short  when  a  man's  character  as  well  as  when  a  man's  life  was 
at  stake.  In  all  countries  cases  had  occurred  in  which  innocent  men 
had  been  pronounced  guilty. 

Mr.  Prince  of  Boston  hoped  the  vote  would  be  reconsidered  for 
several  reasons.  First,  he  was  opposed  to  any  amendments  not  nec- 
essary. Second,  the  Legislature  had  power  to  make  provision  on 
the  subject.  Third,  judges  are  always  disposed  to  the  side  of  human- 
ity. Fourth,  prisoners  who  speak  for  themselves  generally  injure 
their  cause. 

Mr.  Parker,  in  answer  to  Mr.  Austin  of  Charlestown,  said  the 
government  had  not  the  closing  word  ;  the  court  had  it  as  counsel 
for  the  prisoner  ;  and  they  frequently  prevented  a  prisoner  from  be- 
ing punished,  where  he  was  actually  guilty,  merely  for  a  defect  in 
point  of  form.  In  England,  to  which  country  he  presumed  the  gen- 
tleman alluded,  prisoners  were  heard  by  themselves,  and  perhaps 
this  was  the  reason  of  innocent  persons  being  convicted. 

Mr.  Blake  said  Ave  felt  no  disadvantage  in  trusting  to  the  discre- 
tion of  the  judge,  when  we  had  judges  so  virtuous  and  enlightened, 
but  there  might  be  wicked  judges  hereafter,  when  the  privilege 
would  be  important.  In  each  of  the  other  states  the  party  accused 
had  the  privilege  of  being  heard  by  himself  and  his  counsel. 

Mr.  Webster  said  that  he  had  no  objection  to  this  provision, 
if  it  were  deemed  at  all  necessary.  He  should  rather  think  that  the 
provision  as  it  stands  would  be  construed  to  allow  the  defendant  to 


MASSACHUSETTS    CONVENTION.  465 

be  heard  by  himself  and  counsel,  subject  to  the  discretion  of  the 
court  as  to  the  number  of  counsel.  He  rose,  however,  principally 
for  the  purpose  of  adverting  to  the  respectful  and  decorous  manner 
in  which  criminal  jurisdiction  is  administered  in  this  country.  We 
may  court,  in  this  respect,  a  comparison  with  any  country  on  earth. 
In  favor  of  the  defendant,  everything  reasonable  is  allowed.  He  is 
presumed  innocent  ;  his  guilt  must  be  proved,  and  if  a  doubt  remains 
that  doubt  saves  him.  On  the  other  hand,  public  opinions  as  well 
as  the  courts  themselves,  demand  that  his  defence  should  be  con- 
ducted with  decency  and  respect.  One  is  shocked  at  the  license  of 
tongue  indulged  by  defendants,  in  these  times,  before  the  courts  in 
England.  Great,  indeed,  must  be  the  profligacy  of  manners,  where 
such  licentiousness  finds  any  countenance  in  public  sentiment.  The 
lord  chief  justice  of  England  is,  almost  every  month,  bearded  and 
insulted  in  a  manner  which  would  not  for  one  moment  be  tolerated 
by  any  justice  of  the  peace  in  this  Commonwealth.  Our  courts  allow 
every  man  to  say  and  prove  everything  which  can  aid  his  defence  ; 
but  neither  to  state  nor  to  prove  what  has  no  connection  with  his  in- 
dictment. He  (Mr.  W.)  had  noticed  lately,  that  in  some  of  the 
criminal  trials  in  England,  the  defendants  had  narrated  personal  anec- 
dotes of  the  judge,  and  quoted  opinions  of  the  judge's  father,  and 
everything  else  which  he  thought  would  be  offensive  and  insulting 
to  the  judge — all  the  judge  did  was  to  admonish  him  that  this  would 
not  help  him,  and  to  tell  him  that  he  should  not  allow  him  to  call 
witnesses  to  prove  such  statements.  The  object  of  the  defendant, 
in  such  cases,  very  often  is,  to  provoke  the  court  to  some  act  of 
severity,  by  which  he  excites  clamor  or  sympathy,  on  the  ground 
that  he  has  not  had  a  fair  trial.  With  us,  such  clamor  is  not  easily 
nor  groundlessly  excited.  Public  opinion  upholds  the  authority  and 
dignity  of  the  courts — the  jury,  the  spectators,  the  witnesses,  the 
bar — every  body  concurs  to  signify  to  the  defendant  that  he  cannot 
gain  anything  by  effrontery  and  abuse.  He  finds  a  respectful  course 
best  for  him.  Instead  of  affronting  and  defying  the  judge,  he  relies 
upon  him,  to  give  him  every  advantage  of  the  law,  and  usually  he 
so  relies  with  safety.  For  his  (Mr.  WT's)  part  there  was  no  part  of 
our  institutions  which  he  looked  on  with  more  respect,  when  he 
compared  them  with  similar  institutions  elsewhere,  than  our  courts 
of  criminal  jurisdiction. 

Mr.  J.  Davis  of  Boston  said  the  weight  of  government  was  not 
against  the  prisoner.  The  sympathy  of  the  spectators,  of  the  gen- 
tlemen of  the  bar,  of  the  jury,  he  would  not  say  of  the  judge,  was 
usually  on  the  side  of  the  accused.  Generally,  discreet  counsel 
wish  their  client  to  be  silent.  He  had  sometimes  regretted  that  pris- 
oners made  use  of  the  privilege  to  their  own  detriment.  If  a  pris- 
oner is  left  to  his  choice  and  he  employs  counsel,  he  may  remain 
silent  without  any  implication  of  guilt ;  but  if  he  has  a  right  to 
employ  counsel  and  to  speak  himself,  his  silence  might  be  inter- 
preted against  him. 

Mr.  Martin  of  Marblehead  gave  his  reasons  for  allowing  the  pris- 
59 


466  MASSACHUSETTS     CONVENTION. 

oners  to  speak  himself  as  well  as  by  his  counsel,  and  among  others 
that  courts  were  not  always  upright.  In  other  countries  judges  had 
been  hanged  for  bribery  ;  and  there  was  no  reason  to  think  that  our 
judges  will  be  more  pure  than  they  are  in  other  countries. 

Mr.  Keyes  said  he  moved  for  the  reconsideration,  supposing  the 
alteration  was  proposed  on  the  ground  of  having  a  new  draft  of  the 
constitution.  He  hoped  that  would  not  be  the  case,  and  that  no 
trifling  amendment  would  be  sent  out  to  the  people.  The  practical 
construction  always  had  been,  and  would  be,  to  allow  the  privilege 
in  capital  trials.  In  other  cases  we  ought  not  to  throw  open  the 
door,  to  let  in  great  inconveniences,  when  not  a  single  inconvenience 
had  been  pointed  out  in  the  present  system. 

Mr.  Lincoln  of  Worcester  said  this  was  a  question  of  more  than 
ordinary  interest,  and  if  the  amendment  should  finally  prevail,  it 
would  throw  great  confusion  into  our  courts  of  justice.  In  fourteen 
years  of  practice  he  had  generally  been  on  the  criminal  side  of  the 
docket,  and  could  therefore  speak  from  experience.  He  thought 
that  under  our  laws  nine  guilty  persons,  he  believed  he  might  say 
ninety-nine,  escaped,  where  one  who  was  innocent,  suffered.  No 
better  expedient  could  be  devised  than  this  privilege,  to  give  the 
lower  class  of  people  an  opportunity  of  injuring  themselves  and  of 
insulting  the  court.  Men  in  prison  sometimes  spent  day  after  day 
and  week  after  week  in  drawing  up  a  history  of  their  lives  which  had 
nothing  to  do  with  the  case,  and  their  counsel  were  often  embar- 
rassed in  endeavoring  to  keep  them  still.  He  asked  whether  the 
gentleman  from  Charlestown  would  be  willing  to  be  degraded,  so  as 
to  let  a  weak  and  ignorant  man  follow  him,  on  the  supposition  that 
he  had  not  done  justice  to  his  cause.  It  was  said  that  we  might  have 
wicked  men  on  the  bench.  When  that  case  happens,  constitutional 
provisions  would  be  of  but  little  effect. 

Mr.  L.  said  this  was  a  case,  if  there  were  any,  in  which  we  might 
have  confidence  in  the  Legislature.  He  never  knew  of  a  convic- 
tion when  the  prisoner  said  he  had  not  had  a  fair  trial. 
Mr.  Slocum  spoke  against  the  reconsideration. 
Mr.  Austin  of  Boston  said  the  arguments  of  gentlemen  in  favor 
of  a  reconsideration  were  directly  contrary  to  each  other.  Some 
said  the  law-  now  allowed  the  privilege,  and  some  said  it  would  pro- 
duce great  inconveniences  if  it  should  be  allowed.  And  to  whom 
would  it  be  inconvenient  ?  Why,  to  the  prisoner,  who  asks  that  he 
may  be  heard  in  his  own  defence.  Be  the  evil  upon  his  own  head. 
It  was  said  the  Legislature  were  competent  to  make  suitable  pro- 
visions ;  if  so,  he  was  willing  to  strike  out  the  whole  clause  ;  he 
would  not  make  a  half  provision  in  the  constitution.  He  said  there 
had  been  cases,  in  which  the  whole  government  armed  itself  against 
an  individual.     He  stated  cases  of  libel. 

Mr.  Morton  of  Dorchester  said  there  was  no  country  on  earth, 
where  criminal  justice  was  more  equitably  administered  than  with 
us.  He  described  the  present  practice  and  pointed  out  the  conse- 
quences of  adopting  the  amendment.  He  hoped  the  vote  would  be 
reconsidered. 


MASSACHUSETTS    CONVENTION.  467 

Mr.  Sibley  of  Sutton  said  he  was  gratified  when  the  vote  was 
taken.  If  the  time  of  courts  should  be  taken  up  with  listening  to 
the  stories  of  the  prisoners,  that  was  better  than  that  the  innocent 
should  suffer.  They  were  not  making  a  constitution  for  the  court 
and  the  bar,  but  for  the  people.  He  hoped  the  motion  to  reconsider 
would  not  prevail. 

The  question  for  reconsidering  was  taken  and  determined  in  the 
negative — 148  to  154. 

The  resolution  offered  by  Mr.  Hinckley,  proposing  so  to  amend 
the  declaration  of  rights  that  no  person  shall  be  liable  to  be  tried  for 
any  offence  for  which  the  punishment  is  imprisonment,  or  otherwise 
ignominious,  but  on  the  presentment  of  a  grand  jury  of  the  county, 
was  then  taken  up. 

Mr.  Hinckley  expressed  his  views  in  favor  of  the  resolution.  He 
was  on  the  select  committee,  to  whom  was  referred  the  considera- 
tion of  the  declaration  of  rights.  He  thought  that  the  rights  of  in- 
dividuals in  the  point  to  which  this  proposition  relates,  were  not 
sufficiently  protected,  and  he  submitted  the  subject  to  the  considera- 
tion of  the  select  committee.  Their  attention,  however,  was  long 
occupied  by  the  more  important  questions  involved  in  the  third  ar- 
ticle, and  they  were  not  able  to  give  this  proposition  that  attention 
which  its  importance  demanded.  He  did  not  know  that  the  Con- 
vention would  think  it  a  matter  worthy  of  their  attention,  but  he 
thought  it  was  a  defect  in  the  constitution,  that  the  citizens  were 
not  sufficiently  guarded  against  prosecutions  by  the  government. 
He  had  known  an  instance,  many  years  ago,  in  which  the  attorney- 
general  having  failed  to  obtain  an  indictment  by  a  grand  jury  against 
an  individual,  had  threatened  to  proceed  by  information.  He 
thought  that  every  individual  ought  to  have  the  security  of  not  be- 
ing brought  to  a  public  trial  until  an  offence  had  been  charged 
against  him  by  the  grand  inquest  of  the  county,  and  that  counties 
should  not  be  subject  to  the  expense  which  would  be  incurred  by 
trials  originating  by  information. 

Mr.  Parker  of  Boston  said  it  was  remarkable  that  when  the  con- 
stitution was  drawn  up  by  persons  so  careful  of  the  rights  of  the 
citizen,  no  provision  was  made  to  guard  them  in  this  particular. 
It  would  seem  from  the  nature  of  the  government  to  be  proper  that 
no  person  should  be  put  upon  his  trial  but  by  an  inquest  of  a  jury 
of  his  county.  In  Great  Britain  the  power  to  proceed  by  informa- 
tion is  a  great  instrument  in  the  hands  of  the  government.  The 
common  law  is  in  force  here,  and  by  it  the  attorney  and  solicitor 
general  have  authority  to  file  informations  in  cases  under  felony. 
Perhaps  the  court  would  determine  that  the  law  not  having  been 
practised  was  become  obsolete.  But  in  revising  the  constitution  it 
might  be  proper  to  provide  for  the  case.  The  citizen  would  be  safe 
enough  under  such  officers  as  we  now  have,  but  at  another  time  the 
case  may  be  different.  A  person  vexatiously  proceeded  against, 
though  acquitted,  might  be  greatly  injured  by  being  brought  to  trial 
when  the  interference  of  the  grand  jury  would  have  prevented  his 


468  MASSACHUSETTS     CONVENTION. 

being  publicly  accused.  He  proceeded  to  state  the  probable  reasons 
founded  on  some  provincial  laws  to  which  he  referred,  why  the 
provision  was  not  made  in  the  constitution,  and  to  state  more  at 
large  the  reasons  why  it  should  be  made  now.  He  hoped  the  reso- 
lution would  pass,  but  as  he  thought  a  further  exception  ought  to 
be  made,  he  moved  to  amend  the  resolution  by  adding  the  following, 
viz.  : 

And  the  cases  of  convicts  in  the  State  prison,  against  whom  informations  by  law- 
may  be  filed,  for  additional  confinement  to  hard  labor. 

Mr.  Fay  of  Cambridge  said  that  one  exception  had  been  discov- 
ered, and  it  might  be  found  that  there  ought  to  be  others.  He 
thought  there  would  be  no  danger  in  giving  the  discretion  to  the 
Legislature  to  provide  by  law  for  informations  in  particular  cases. 
He  had  no  objection  to  the  resolution  on  general  principles,  but  he 
objected  to  depriving  the  Legislature  of  the  power  of  authorizing 
this  course  of  proceeding,  in  particular  cases  in  which  it  might  be 
found  necessary.  He  wished,  therefore,  that  the  resolution  might 
be  further  modified. 

Mr.  Abbot  of  Westford  said  that  the  resolution  would  take  away 
the  power -of  justices  of  the  peace  to  punish  petty  larcenies. 

Mr.  Hubbard  of  Boston  read  a  passage  from  a  statute,  granting 
certain  powers  to  justices  of  the  peace  which  he  said  were  incon- 
sistent with  this  resolution  ;  unless  it  was  desirable  to  repeal  the  law 
the  resolution  ought  not  to  be  adopted  as  it  was.  It  would  take 
away  the  jurisdiction  given  to  justices  of  the  peace  in  the  cases 
stated. 

The  amendment  was  agreed  to — 113  to  2. 

The 'question  was  then  stated  on  the  resolution  as  amended. 

Mr.  Fay  doubted  the  propriety  of  adopting  the  resolution  as  it 
stood.  He  thought  they  ought  to  have  further  time  and  to  have  it 
printed,  or  that  it  should  be  committed  to  a  select  committee. 
Half  the  house  did  not  vote  at  all  upon  the  amendment,  because 
they  did  not  understand  the  subject.  He  moved  that  the  resolution 
should  be  passed  over,  and  the  other  subjects  under  consideration  of 
the  committee  taken  up — agreed  to. 

The  resolution  submitted  by  Mr.  Phelps,  proposing  so  to  amend 
the  constitution  that  the  estate  of  ministers  of  the  gospel  shall  not 
be  exempt  from  taxation,  provided  it  exceed  one  thousand  dollars, 
was  then  taken  up. 

Mr.  Phelps  of  Chester  said  that  he  had  not  offered  the  proposition 
from  any  cfisrespect  to  the  reverend  clergy.  He  respected  them  as 
highly  as  any  man.  He  thought  it  was  not  the  intention  of  the 
people  in  forming  the  constitution  to  give  the  Legislature  power  to 
exempt  any  class  of  men  from  the  payment  of  their  share  of  taxes 
for  the  support  of  government.  He  quoted  a  passage  from  the  con- 
stitution in  support  of  this  position.  Many  ministers  within  his 
knowledge  were  in  point  of  property  among  the  most  independent 
men  in  society.  They  own  large  landed  estate,  and  had  large  sums 
of  money  which   they  were   letting  out  at  interest  on  mortgages. 


MASSACHUSETTS     CONVENTION.  469 

They  enjoyed  all  the  privileges  of  government  and  were  entitled  to 
be  chosen  to  offices.  They  enjoyed  great  perquisites  in  having  the 
right  to  marry — the  fees  of  which  were  considerable.  It  was  not  a 
matter  which  he  felt  personally  concerned  in,  but  in  some  towns  he 
was  acquainted  with,  there  were  ministers  who  were  among  the 
most  wealthy  persons  in  town. 

Mr.  Dana  moved  to  strike  out  the  proviso.  If  there  was  any  ar- 
ticle on  the  subject  he  would  not  provide  for  any  permanent  exemp- 
tion. But  he  would  add  a  proviso  in  favor  of  ministers  of  the  gospel 
already  settled.  It  was  but  an  act  of  justice  to  make  such  a  proviso. 
But  gentlemen  afterwards  settled  in  the  ministry,  if  it  was  deter- 
mined there  should  be  no  exemption,  would  take  it  into  considera- 
tion in  making  their  contracts  with  their  parishes. 

Mr.  Tillinghast  of  Wrentham  was  in  favor  of  the  amendment. 
He  hoped  the  proviso  would  be  struck  out  and  that  the  article  would 
be  agreed  to  without  any  further  modification. 

Mr.  Freeman  of  Sandwich  spoke  to  the  same  effect.  He  had 
heard,  deaf  as  he  was,  great  dissatisfaction  expressed  at.  their  priv- 
ileges enjoyed  by  the  clergy,  and  particularly  their  exemption  from 
taxation. 

Mr.  Sturgis  of  Boston  hoped  that  neither  the  amendment  nor  the 
resolution  would  prevail.  It  was  a  subject  very  properly  left  to  the 
Legislature.  The  resolution  was  not  only  aimed  at  clergymen,  but 
all  others  who  are  exempted  by  the  annual  tax  laws.  He  had  been 
in  the  Legislature  and  on  the  committee  for  preparing  the  tax  bill, 
and  he  had  never  found  any  disposition  to  exempt  any  persons  from 
taxation,  when  the  tax  could  be  properly  demanded.  The  argu- 
ment of  the  gentleman  from  Chester  would  go  against  exempting 
any  persons  from  military  service.  He  thought  that  without  going 
into  the  argument  it  was  perfectly  safe  to  leave  it  to  the  wisdom  and 
discretion  of  the  Legislature.  He  had  such  a  respect  for  the  clergy 
that  he  was  not  disposed  to  deprive  them  of  any  privilege  which 
they  were  fairly  entitled  to. 

Mr.  Blake  thought  the  resolution  was  altogether  unnecessary. 
Every  object  of  it  was  fully  provided  for  by  the  constitution  al- 
ready. If  any  construction  of  the  constitution  gave  a  discretion  to 
the  Legislature  to  exempt  from  taxation  this  useful  and  respectable 
body  of  men,  he  would  not  abridge  that  discretion. 

Mr.  Hoyt  of  Deerfield  was  opposed  to  the  amendment  and  to  the 
resolution.  The  subject  comes  before  the  Legislature  every  year 
in  the  annual  tax  act.  They  will  never  act  upon  it  without  due 
consideration,  and  he  would  leave  it  entirely  to  their  discretion. 
He  had  no  doubt  there  were  instances  in  which  clergymen  owned 
property  which  ought  to  be  taxed. 

Mr.  Phelps  was  opposed  to  striking  out  the  proviso.  He  did  not 
object  to  exempting  a  limited  amount  of  property. 

Mr.  Slocum  considered  clergymen  as  an  ornament  to  our  society  ; 
they  spread  the  gospel  far  and  wide.  He  wanted  they  should  have 
equal  privileges  and  equal  rights,  but  he  did  not  want  to  have  any 
privileged  order. 


470  MASSACHUSETTS     CONVENTION. 

Mr.  Hubbard  was  opposed  to  the  amendment  because  he  was  op- 
posed to  the  resolution.  This  subject  had  been  for  forty  years  mat- 
ter of  legislative  provision.  It  was  acted  on  every  year.  The 
ministers  of  the  Commonwealth  have  been  settled  with  the  under- 
standing that  their  property  is  not  to  be  taxed.  Their  salaries  have 
for  that  reason  been  fixed  at  a  lower  rate.  If  there  were  any  of 
them  who  by  great  prudence  and  frugality  had  been  able  to  lay  up 
anything,  he  was  glad  of  it. 

Mr.  Welles  of  Boston  said  the  constitution  had  provided  general 
principles  which  were  sufficient  on  this  subject.  He  should  be  sorry 
to  see  this  order  of  men  introduced  into  the  constitution,  as  subject 
to  a  particular  provision.  He  thought  both  the  proviso  and  resolu- 
tion were  entirely  unnecessary.  If  the  exemption  should  ever  be 
found  an  evil,  the  Legislature  would  take  measures  to  guard  against 
it. 

Mr.  Sturgis  stated  the  usual  exemptions  of  the  annual  tax  act. 
He  thought  that  the  proposition  went  further  than  the  mover  himself 
intended. 

Mr.  Thorndike  thought  the  Legislature  had  full  power,  and  that 
it  would  be  beneath  the  dignity  of  the  Convention  to  introduce 
anything  into  the  constitution  which  should  aim  at  this  useful  and 
respected  class  of  men,  either  to  take  away  any  part  of  their  priv- 
ileges, or  to  hold  them  up  to  public  odium. 

Mr.  Tillinghast  had  not  heard  anything  that  satisfied  him  that 
this  provision  ought  not  to  be  engrafted  into  the  constitution.  He 
objected  not  only  to  the  exemption  of  clergymen,  but  to  the  property 
of  colleges  and  property  of  all  other  descriptions.  Harvard  Univer- 
sity had  millions  of  property  perhaps,  and  he  thought  it  ought  not 
to  be  exempt  from  its  share  of  the  public  burthens. 

Mr.  Savage  had  hoped  that  gentlemen  had  learned  that  the  object 
of  the  Convention  was  to  settle  general  principles  and  not  details. 
The  Legislature  represents  the  sovereignty  of  the  country.  And 
we  cannot  undertake  to  limit  every  exercise  of  its  discretion. 

Mr.  Paige  of  Hardwick  thought  if  we  would  exercise  a  little  plain 
common  sense,  we  should  throw  the  whole  thing  aside,  both  the 
amendment  and  the  resolution. 

The  motion  to  amend  was  negatived,  and  the  question  on  the 
resolution  was  decided  in  the  negative — 42  to  207. 

The  resolution  submitted  by  Mr.  Boylston  was  then  taken  up. 

Mr.  Boylston  of  Princeton  said  that  his  object  was  entirely  in  a 
commercial  relation.  It  was  intended  to  invite  foreigners  to  come 
to  our  shores,  by  the  offer  of  equal  protection  to  men  of  all  religious 
opinions.  As  the  constitution  now  stands,  the  offer  of  protection 
was  confined  to  persons  of  the  Christian  religion. 

Mr.  Hubbard  read  the  second  article  of  the  bill  of  rights  which 
he  thought  made  the  most  ample  provision  for  the  object. 

Mr.  J.  Davis  of  Boston  opposed  the  resolution.  He  thought  it 
would  be  better  to  leave  it  to  legislative  discretion.  Persons  of  all 
religions  have  in  fact  full  and  equal  protection. 


MASSACHUSTTS    CONVENTION.  471 

Mr.  Quincy  objected  to  the  resolution  because  it  seemed  to  imply- 
that  persons  of  all  religions  were  not  now  under  the  protection  of 
the  law.  He  showed  on  what  grounds  he  thought  the  object  was 
fully  provided  for. 

The  resolution  was  negatived. 

On  motion  of  Mr.  Fay  the  committee  rose,  reported  on  the  business 
that  was  finished,  and  asked  leave  to  sit  again  on  the  resolution  pro- 
posed by  Mr.  Hinckley. 

On  motion  of  Mr.  Hinckley,  the  committee  of  the  whole  was  dis- 
charged from  the  further  consideration  of  the  resolution,  and  it  was 
committed  to  a  select  committee. 

Messrs/  Hinckley,  Fay,  and  Morton  were  appointed  on  the 
committee. 

On  motion  of  Mr.  Webster,  the  first  resolution,  relating  to  the 
declaration  of  rights,  agreed  to  in  committee  of  the  whole,  was  as- 
signed for  half  past  nine  o'clock,  to-morrow. 

Mr.  Prince  moved  a  resolution,  providing  that  the  constitution 
should  be  so  altered,  that  in  all  prosecutions  for  libels,  the  party 
accused  shall  have  a  right  to  introduce  evidence  in  support  of  his 
allegations,  and  the  jurors  in  all  cases  of  libel,  shall  have  the  right 
to  decide  on  the  law  as  well  as  on  the  fact. 

Committed  to  the  select  committee  above  named. 
Leave  of  absence  was  granted  to  Mr.  Cranston  of  Marlborough. 
A  motion  to  adjourn  to  half  past  three  this  afternoon  was  nega- 
tived— 107  to  55. 

The  Convention  then  went  into  committee  of  the  whole  on  the 
resolution  proposing  to  abolish  the  office  of  solicitor  general  ;  Mr. 
Fay  of  Cambridge  in  the  chair. 

Mr.  Dana  said  it  was  not  a  great  object  with  him  to  abolish  this 
office.  There  might  be  employment  found  for  it.  But  there  was 
an  expectation  that  the  offices  of  government  would  be  reduced. 
He  thought  there  might  be  a  different  arrangement  of  the  duties  of 
the  state  offices.  There  should  be  an  attorney  general,  whose 
duties  should  be  defined  by  law.  It  should  be  a  part  of  his  duty  to 
be  at  the  seat  of  government,  to  advise  the  departments  of  govern- 
ment in  matters  of  law.  The  constitution  also  required  the  office 
of  county  attorneys.  He  thought  a  part  of  the  duties  of  govern- 
ment would  be  as  well  performed  by  officers  of  this  description. 

Mr.  Parker  thought  there  were  some  circumstances  which  the 
mover  of  this  resolution  had  not  attended  to.  Though  the  office 
was  provided  for  in  the  constitution  of  1780,  it  was  not  supplied 
until  twenty  years  after.  It  became  then  absolutely  necessary. 
Great  embarrassment  would  have  arisen  if  the  office  could  not  have 
been  established.  It  might  possibly  be  dispensed  with  now,  but  it 
might  become  necessary  hereafter.  It  was  convenient,  if  not  neces- 
sary now.  The  Legislature  had  made  such  an  arrangement  of  the 
courts  for  the  completion  of  business  as  to  have  two  circuits  going 
on  at  the  same  time.  It  was  extremely  convenient,  and  might  some- 
times be  very  important,  that  one  of  the  law  officers  should  attend 


472  MASSACHUSETTS    CONVENTION. 

these  circuits.  Much  was  saved  to  the  community  by  the  attention, 
perseverance  and  ability  of  the  gentlemen  who  perform  these  duties. 
County  attorneys,  though  commonly  competent,  had  no  inducement 
to  pay  that  attention  to  the  business  which  ought  to  be  paid.  Much 
was  saved  by  having  two  circuits,  and  by  having  a  responsible 
officer  attend  the  courts. 

Mr.  Freeman  of  Sandwich  expressed  his  concurrence  in  the  views 
of  Mr.  Parker,  and  gave  some  additional  reasons  against  the  resolu- 
tion. 

Mr.  Hyde  moved  that  the  committee  rise.  He  thought  it  too 
important  a  subject  to  be  acted  on  in  so  thin  a  House. 

The  motion  was  negatived. 

Mr.  Ward  spoke  against  the  resolution.  He  stated  some  reasons 
for  retaining  the  office  not  before  mentioned. 

Mr.  Dana  spoke  again  in  support  of  the  resolution. 

The  question  was  then  taken  and  the  resolution  agreed  to — 98 
to  71. 

The  committee  rose,  and  reported  their  agreement  to  the  resolu- 
tion, which  was  laid  on  the  table, 

And  the  House  adjourned. 


Friday,  December  30. 

The  House  met  at  half  past  9  o'clock,  and  attended  prayers 
offered  by  Rev.  Mr.  Palfrey.  The  journal  of  yesterday  was  then 
read. 

Mr.  Fisher  of  Lancaster  was  appointed  a  monitor  in  the  room  of 
Mr.  Valentine,  who  was  absent  on  leave. 

On  motion  of  Mr.  Dana,  the  House  went  into  committee  of  the 
whole  on  the  reports  of  the  select  committee  on  the  judiciary  power; 
Mr.  Morton  in  the  chair. 

The  committee  went  into  consideration  of  the  first  resolution  of 
the  select  committee,  which  proposes  to  alter  the  constitution  so 
that  judicial  officers  shall  be  removable  by  the  governor  and  coun- 
cil, upon  the  address  of  two-thirds  (instead  of  a  majority)  of  each 
branch  of  the  Legislature  ;  and  also  that  the  Legislature  shall  have 
power  to  create  a  supreme  court  of  equity,  and  a  court  of  appeals. 

Mr.  Keyes  of  Concord  opposed  the  first  part  of  the  resolution,  on 
the  ground  that  the  change  was  unnecessary.  He  said  no  evil  had 
arisen  from  the  present  provision,  and  there  was  no  danger  to  be 
apprehended  from  trusting  to  a  majority  of  each  branch  of  the 
Legislature. 

Mr.  Rantoul  of  Beverly  moved  that  the  committee  rise,  and  ask 
leave  to  be  discharged  from  the  further  consideration  of  the  report 
of  the  select  committee. 

Mr.  Pickman  of  Salem  objected  to  the  committee's  asking  to 
be  discharged.  The  select  committee,  the  chairman  especially, 
who  was  absent,  had  bestowed  a  great  deal   of  time   and  care  in 


MASSACHUSETTS    CONVENTION.  473 

making  up  this  report,  and  it  would  not  be  treating  them  with 
respect  to  refuse  it  any  discussion.  He  said  the  provision  in  the 
Constitution  respecting  the  removal  of  judicial  officers,  had  been 
complained  of,  as  rendering  the  judges  too  dependent  upon  the  Leg- 
islature. It  was  proper  to  have  a  provision  of  a  similar  nature,  to 
meet  cases  that  were  not  the  proper  subject  of  impeachment,  such 
as  incapacity  from  natural  infirmities ;  and  he  thought  that  requir- 
ing the  consent  of  two-thirds  of  each  branch  of  the  Legislature, 
would  secure  the  public  in  cases  of  manifest  incapacity  of  this  kind, 
and  at  the  same  time  give  greater  independence  to  the  judges. 

Mr.  Dana  said  the  report  generally  was  not  a  favorite  with  him  ; 
but  there  was  one  resolution  in  it  which  he  wished  might  be 
adopted,  to  prevent  the  judges  of  the  supreme  court  being  called 
upon  by  the  governor,  &c,  to  answer  questions.  He  felt  that  the 
State  was  a  million  of  dollars  poorer  for  the  provision  of  the  con- 
stitution on  this  subject.  The  departments  of  government  should 
be  kept  distinct,  and  act  on  their  own  responsibility.  Judges 
should  not  be  obliged  to  give  opinions  without  hearing  arguments. 
On  account  of  this  resolution,  he  was  opposed  to  the  committee;s 
requesting  to  be  discharged. 

The  question  for  rising  was  put,  and  decided  in  the  negative. 

The  question  recurred  on  the  first  resolution. 

Mr.  Richardson  of  Hingham  opposed  the  resolution.  It  was 
contrary  to  the  principles  of  our  government  to  require  the  concur- 
rence of  more  than  a  majority.  If  two-thirds  of  each  house  was 
required  to  remove  a  judge,  it  could  never  be  done,  if  he  were  ever 
so  corrupt.  The  judges  of  the  courts  of  the  United  States  might 
be  impeached  ;  but,  by  this  resolution,  however  imperious  the 
demand  for  the  removal  of  our  judges,  it  would  be  next  to  impos- 
sible. 

Mr.  Austin  of  Boston  moved  to  amend  the  resolution  by  striking 
out  all  the  words  after  resolved,  and  inserting  that  it  was  inexpedi- 
ent to  make  any  alteration  or  amendment  in  that  part  of  the  consti- 
tution that  relates  to  the  judiciary. 

Mr.  Austin  stated  some  reasons  for  his  amendment. 

Mr.  Trask  of  Brimfield  opposed  the  amendment.  It  was  con- 
sidered a  defect  in  our  constitution,  that  our  judges  were  left  ex- 
posed to  the  caprice  of  the  Legislature,  on  any  popular  commotion, 
and  it  ought  to  be  remedied. 

The  Chairman  said  the  motion  of  the  gentleman  was  out  of 
order,  as  its  effect  would  be  to  strike  out  all  the  other  resolutions 
of  the  report. 

Mr.  Austin  appealed,  and  the  committee  determined  that  the 
decision  of  the  chair  was  not  correct — 106  to  109. 

Mr.  Blake  said  he  thought  it  would  be  no  more  than  civility 
towards  the  gentleman  from  Salem,  the  chairman  of  the  select 
committee,  to  postpone  the  consideration  of  this  subject.  He 
therefore  moved  that  the  committee  rise.     Negatived. 

Messrs.  Varnum  and  J.  Phillips  made   some  remarks  respecting 
60 


474  MASSACHUSETTS    CONVENTION. 

the  effect  of  Mr.  Austin's  amendment  on  the  mode  of  considering 
the  resolutions  in  the  report.  Mr.  P.  proceeded  to  say,  that  he  was 
on  the  select  committee  ;  that  various  propositions  respecting  the 
removal  of  judges  were  offered  in  the  committee,  to  which  objec- 
tions were  made,  and  that  the  present  proposition  was  a  matter  of 
compromise.  It  was  agreed  that  giving  to  two-thirds  of  both 
branches  of  the  Legislature  the  power  to  address  the  governor, 
would  effect  the  object  whenever  there  should  be  such  prominent 
cause  for  a  removal  as  should  satisfy  the  whole  public. 

Mr.  Mitchell  of  Bridge  water  wished  the  question  to  be  divided. 
The  question  then  was  upon  striking  out. 

Mr.  Pickman  made  a  motion  to  rise.  Negatived — 95  to  197. 
Mr.  Hubbard  of  Boston  said  he  was  unwilling  to  have  this  sub- 
ject discussed  in  the  absence  of  the  chairman  of  the  select  commit- 
tee, but  as  gentlemen  seemed  determined  to  act  upon  the  resolu- 
tion, he  could  not  consent  to  give  a  silent  vote,  though  he  did  not 
expect  by  his  arguments  to  change  the  opinions  of  any  one.  He 
considered  the  first  branch  of  the  first  resolution  to  be  of  great 
importance.  The  argument  from  the  experience  of  forty  years, 
being  founded  on  the  powers  of  the  present  constitution  not  having 
been  abused,  was  not  a  fair  one.  The  constitution  was  defective 
in  not  sufficiently  securing  the  independence  of  the  judges.  He 
asked  if  a  judge  was  free,  when  the  Legislature  might  have  him 
removed  whenever  it  pleased  ?  What  would  be  said  of  the  freedom 
of  the  Legislature,  if  the  judges  had  the  power  to  dissolve  it  at 
pleasure  ?  The  tenure  of  office  of  judges-was  said  to  be  during 
good  behavior.  Was  this  the  case  when  the  Legislature  might 
deprive  them  of  their  office,  although  they  had  committed  no 
crime.  Sufficient  provision  was  made  in  the  case  of  misconduct  in 
the  power  of  impeachment.  The  constitution  of  the  United  States 
had  been  made  since  our  own,  and  contained  no  such  provision 
as  this.  Was  there  ever  any  complaint  on  this  account  ?  On  the 
contrary,  was  there  not  the  greatest  respect  and  confidence  reposed 
in  the  judges  of  the  supreme  court  of  the  United  States.  This 
provision  was  not  reconcilable  with  the  twenty-ninth  article  of  the 
declaration  of  rights,  which  says  that  it  is  for  the  security  of  the 
rights  of  the  people  that  the  judges  of  the  supreme  court  should 
hold  their  offices  as  long  as  they  behave  themselves  well.  He 
wished  there  might  be  no  clause  repugnant  to  the  spirit  of  the 
constitution.  On  the  plan  proposed  for  the  organization  of  the 
house  of  representatives,  the  judges  would  be  removable  by  a  ma- 
jority of  representatives  of  a  little  more  than  half  of  the  people. 
No  justice  of  the  peace  was  allowed  to  be  deprived  of  his  office 
without  a  hearing,  but  here  the  judges  of  the  highest  court  might 
be  dismissed  without  an  opportunity  of  saying  a  word  in  their 
defence.  The  object  of  the  resolution  was  not  to  restrain  the  rights 
of  the  people,  but  to  restrain  the  powers  of  the  Legislature.  It  was 
to  secure  the  rights  of  the  people.  Connecticut  had  grown  wiser, 
and  had  changed  their  mode  of  constituting  their  judiciary,  and  had 


MASSACHUSETTS     CONVENTION.  475 

adopted  the  provision  now  proposed.  The  effect  of  a  different 
course  would  be  to  make  judges  political  men.  They  would  be 
judges  one  day,  and  legislators  the  next.  There  ought  to  be  no 
limit  to  the  tenure  of  office,  so  long  as  a  judge  behaves  himself 
well,  unless  perhaps  in  regard  to  age ;  but  in  that  case  his  salary, 
or  part  of  it  at  least,  ought  to  be  continued.  With  regard  to  the 
next  branch  of  the  resolution,  he  said  the  only  object  of  it  was  to 
give  the  Legislature  power  to  create  an  independent  court  of  chan- 
cery. The  question  was  not  whether  it  was  wise  to  establish  such 
a  court,  but  only  to  give  the  Legislature  the  power,  if  circum- 
stances shall  render  it  proper  and  expedient.  The  same  remark 
would  apply  to  the  next  branch  of  the  resolution,  respecting  a 
court  of  appeals. 

Mr.  Webster  wished  to  divide  the  question  for  striking  out.  He 
moved  to  strike  out  all  but  the  first  branch  of  the  resolution.  He 
did  not  mean  to  be  understood  as  objecting  to  the  provision  in  the 
part  he  proposed  to  strike  out. 

Mr.  Savage  of  Boston  said  he  hoped  we  should  have  as  good 
provisions  in  our  constitution  as  there  were  in  the  constitution  of 
the  United  States.  He  hoped  we  should  have  better — that  we 
should  have  the  advantage  of  both  modes  of  removal  from  office,  by 
impeachment,  and  upon  an  address  of  the  Legislature,  so  as  to  meet 
the  moral  disqualifications  and  the  natural  disqualifications  for 
office.  It  had  been  our  misfortune,  in  this  part  of  the  country,  to 
have  a  judge  impeached  in  the  senate  of  the  United  States  for 
crime,  and  he  was  afraid  his  memory  served  him  but  too  well  when 
he  said  that  the  senate  declared  him  guilty,  when  he  was  guilty 
only  of  insanity.  He  said  a  provision  like  that  in  our  constitution 
would  be  less  dangerous  in  the  constitution  of  the  United  States. 
The  judges  would  not  be  generally  known  to  the  members  of  Con- 
gress, and  the  popular  passions  of  so  great  a  body  as  the  whole 
United  States  would  not  be  everywhere  excited  at  the  same  time. 
There  was  no  security  that  a  judge  would  decide  a  law  to  be 
unconstitutional,  when  the  same  Legislature  perhaps  which  passed 
the  law,  may  remove  him.  It  ought  not  to  be  in  the  power  of  the 
Legislature  to  address  for  any  offence.  The  accused  ought  to  be 
heard  in  his  defence. 

Mr.  Shaw  called  the  attention  of  the  committee  to  the  object  of 
the  provision  in  the  constitution,  and  the  time  when  it  was  intro- 
duced. It  is  laid  down  as  a  general  principle  in  the  declaration  of 
rights,  that  the  powers  of  government  should  be  vested  in  distinct 
branches — that  the  legislative,  executive  and  judiciary  departments 
respectively,  shall  not  exercise  the  powers  of  either  of  the  others, 
and  that  it  is  the  right  of  every  citizen  to  be  tried  by  judges  as  free, 
impartial  and  independent  as  the  lot  of  humanity  will  admit.  The 
independence  of  one  department  of  the  government  upon  the  other 
has  been  considered  one  of  the  most  important  political  improve- 
ments of  modern  times.  This  principle  is  set  forth  with  great  force 
in  the  Defence  of  the  American  Constitution.     It  has  been  adopted 


476  MASSACHUSETTS    CONVENTION. 

by  all  enlightened  governments  in  the  world.     The  judges  are  made 
independent  of  the  crown  and  of  the  people.     Is  this  done  in  our 
constitution  ?     Although  they  hold  the  office  nominally  by  the  ten- 
ure of  good  behavior,  if  in  another  part  you  say  they  shall  hold  it 
at  the  will  of  the  other  branch,  you  make  them  dependent,  and  the 
first  clause  becomes  nugatory.     This  constitution  was  formed  as 
early  as  1780.     It  was  one  of  the  first  in  the  country — it  was  but 
an  experiment.     Great  Britain  was  looked  to  as  an  example.     How 
was  this  provision   introduced  into  practice  in  Great  Britain  ?     It 
was  not  to  make  them  independent  of  the  people,  but  to  make  them 
independent   of  the   crown.     It   was  therefore  considered  a  great 
triumph  of  the  people,  as  securing  their  independence  of  the  crown. 
The  general  principle  was,  that  they  should  be  independent  of  the 
other  persons  during  good  behavior.     What  is  meant  by  good  be- 
havior ?     The  faithful  discharge  of  the  duties  of  the  office.     If  not 
faithful  they  were   liable    to    trial    by  impeachments.     But   cases 
might   arise  when  it   might  be  desirable  to  remove  a  judge  from 
office  for  other  causes.     He  may  become  incapable  of  performing 
the  duties  of  the  office  without  fault.     He  may  lose  his  reason,  or 
be   otherwise   incapacitated.     It  is  the   theory  of  our  government 
that  no   man  shall  receive  the  emoluments  of  office,  without  per- 
forming the  services,  though  he  is  incapacitated  by  the  providence 
of  God.     It  is  necessary  therefore   that  there  should  be   provision 
for  this  case.     But  in  cases   when  it  applies,  the  reason  will  be  so 
manifest  as  to  command  a  general  assent.     It  must  be  known  so  as 
to  admit  no  doubt,  if  a  judge  has  lost  his  reason,  or  become  incapa- 
ble of  performing  his  duties.     As  it  does  not  imply  misbehavior,  if 
the  reason  cannot  be  made  manifest  so  as  to  command  the  assent 
of  a  great  majority  of  the  Legislature,  of  two-thirds  at  least,  there 
can  be   no  necessity  for  the  removal.     By  the  constitution  as  it 
stands,  the  judges  hold  their  offices  at  the  will   of  the  majority  of 
the  Legislature.     He  confessed  with  pride  and   pleasure  that  the 
power  had  not  been  abused.     But  it  was  capable  of  being  abused. 
If  so  it  ought  to  be  guarded  against.     That  could  be  done  by  re- 
quiring the  voice  of  two-thirds  of  each  branch  of  the  Legislature. 
If  unfortunately  it  should  happen  that  this  power  should  be  re- 
sorted to  for  purposes  which  the  constitution  did  not  intend — to 
gratify  the  wishes  of  a  party,  it  would  put  at  risk  the  security  of 
life,  liberty  and  property,  intended   to    be    guarded  by  the  inde- 
pendence of  the  judiciary.     Suppose  a  party,  from  a  temporary  tri- 
umph, should  remove  judges  when  the  justice  of  it  is  not  manifest, 
and  the  party  which  makes  the  removal    should    be    put  down. 
Their  successors  in  power  would  say  it  was  an  act  of  justice  to 
restore  those  who  were  put  out  of  office.     In  such  case  the  whole 
judiciary  system  would  necessarily,  after  one  or  two  changes,  be 
put  entirely  at  the  will  of  the  prevailing  party.     He  hoped  the 
Convention  would  adopt  the   remedy  which    was    proposed,  and 
which  would  leave  the  power  of  removal  to  be  exercised  in  cases 
where  it  ought  to  be.  and  in  no  other. 


MASSACHUSETTS    CONVENTION.  4*77 

Mr.  Freeman  of  Sandwich  would  have  been  in  favor  of  the  whole 
resolution  if  that  part  of  it  relating  to  the  power  of  establishing  a 
supreme  court  of  chancery,  and  court  of  appeals,  had  not  been 
struck  out.  He  should  have  liked  this  clause  as  well  if  the  com- 
mittee had  proposed  to  limit  the  power  of  the  governor  and  council 
to  remove  judges  on  the  address  of  the  two  branches  of  the  Legislat- 
ure to  specific  cases,  such  as  insanity  or  disability.  But  he  was 
willing  to  adopt  the  resolution  now  reported.  The  judges  were  not 
now  independent  of  the  other  departments  of  government.  It  was 
our  duty  to  look  beyond  the  present  moment,  and  provide  for  cases 
easily  imagined,  where  some  security  would  be  necessary. 

Mr.  Prescott  of  Boston  was  sensible  of  the  impatience  of  the 
committee,  but  he  felt  it  his  duty  not  to  let  the  subject  pass  without 
giving  his  voice  in  support  of  the  resolution.  He  had  long  consid- 
ered this  provision  one  of  the  most  important  that  could  be  introduced 
into  the  constitution.  He  rejoiced  to  say  that  during  the  experience 
of  forty  years  the  different  branches  had  remained  independent  of 
each  other,  but  they  were  bound  to  see  whether  their  independence 
was  sufficiently  secured.  Was  the  executive  department  indepen- 
dent of  the  other  two  ?  Was  the  judiciary  independent  of  the 
legislative  and  the  executive,  or  both  united  ?  It  was  as  much  to 
be  protected  from  a  combination  of  two,  as  from  any  one.  They 
were  bound  to  see  which  department  was  the  most  feeble.  No 
argument  was  necessary  to  show  that  if  all  were  combined  in  one 
body,  the  danger  would  be  great.  If  two  were  united  they  would 
be  formidable.  How  was  it  in  the  other  departments?  The 
executive  is  removable  only  for  misconduct.  The  members  of  the 
Legislature  hold  by  the  same  tenure,  and  these  are  all  officers  chosen 
by  the  people.  Is  the  judiciary  as  well  protected  ?  It  is  as  impor- 
tant as  any  department.  The  rights  of  all  are  dependent  on  it. 
They  have  besides  an  odious  duty  to  perform.  They  have  to  decide 
controversies  between  individuals,  by  which  one  party  or  the  other 
must  be  offended,  because  one  must  lose.  They  have  no  concilia- 
tory duties  to  perform  ;  it  is  therefore  necessary  that  they  should  be 
supported  by  the  constitution.  What  security  have  they  by  the 
constitution  ?  They  hold  their  offices  as  long  as  they  behave  well 
and  no  longer.  They  are  impeached  when  guilty  of  misconduct. 
It  is  the  duty  of  the  house  of  representatives,  constituting  the  grand 
inquest  of  the  Commonwealth,  to  make  inquiry — for  the  senate  to 
try,  and  if  guilty  to  remove  them  from  office.  There  may  be  other 
cases  in  which  they  ought  to  be  removed  when  not  guilty  of  mis- 
conduct in  office,  but  for  infirmity.  Provision  is  made  for  these 
cases,  that  the  two  branches  of  the  Legislature  concurring  with  the 
governor  and  council,  may  remove  judges  from  office.  He  did  not 
object  to  this  provision  if  it  was  restrained  so  as  to  preserve  the 
independence  of  the  judges.  They  should  be  independent  of  the 
Legislature  and  of  the  governor  and  council.  But  now  there  is  no 
security.  The  two  other  departments  may  remove  them  without 
inquiry — without  putting  any  reason  on  record.     It  is  in  their  pow- 


478  MASSACHUSETTS     CONVENTION. 

er  to  say  that  the  judges  shall  no  longer  hold  their  offices,  and  that 
others  more  agreeable  shall  be  put  in  their  places.     He  asked,  was 
this  independence  ?     If  it  was  not,  the  constitution  did  not  secure 
it.     It  was  not  for  the  present  time  that  it  was  necessary.     Perhaps 
the  experience   of  the   past  had  not  shown  the  want  of  it.     It  was 
enough  to  show  that  the  security  of  every  person  who  has  rights 
may  at  some  future  day  be   dependent   on  it.     It  was  not  taking 
power  from  the  people,  it  was  apportioning  and  balancing  the  power 
of  the  servants  of  the  people.     Would  any  one,  looking  back  on  the 
past,  say  that  we  should  not  have  times  of  great  turbulence — factious 
leaders,  who  will  have  projects  injurious  to  the  true  interests  of  the 
community  ?     Let  such  leaders,  high  in  popular  favor,   carry  their 
measures  through  the  Legislature- — the  executive  will  partake  of  the 
same  feeling.     Let  us  have  a  firm  judiciary,  and  they  will  say  that 
these  laws  if  they  encroach  upon  the  rights  of  the  citizen,  are  un- 
constitutional.    What    will    be    the    consequence  ?     With  such  a 
Legislature,  are  we  not  to  expect  they  will  agree  in  an  address  for 
the  removal  of  the  judges   who  thwart  their  measures — that  they 
will  meet  the  concurrence  of  the  chief  magistrate,   and  that   other 
men  will  be  found  to  supply  their  places  who  will  put  such  a  con- 
struction on  the  laws  as  they  wish.     The  constitution  secures  the 
freedom  of  the  press.     But  this  is  an  instrument   troublesome  to 
demagogues    in  power,  and  they  might  make  laws  to  destroy  it. 
An  upright  judge  would  declare  such  a  law  to  be  unconstitutional, 
and  for  such  a  performance  of  his  duty,   he  would  be  put  down  by 
the  party  in  power,  and  another  put  in  his  place  who  would  be  more 
compliant.     He  might  suppose  more  probable  and  more   important, 
cases  even  than  this.    He  therefore  wished  some  further  security  for  the 
independence  of  the  judge.     The  constitution  of  the  United  States 
has  wisely  provided  it.     The  mode  of  removal  by  address  was  in- 
troduced into  the  British  government  for  the  purpose  of  restraining 
the  power  of  the  crown,  but  into  ours  for  another  purpose — to   pro- 
vide for  a  case  which  could  not  properly  be  reached  by  the  power 
of  impeachment.     But  it  ought  to  be  provided  for  in  a  manner  con- 
sistent with  the  independence  which  the  constitution  in  another  part 
of  it  demands.     The  limitation  proposed  in  the  exercise  of  this  power 
is  not  a  novelty.     It  is  found  in  most  of  the  state  constitutions.     In 
four  out  of  five  of  them  the  judges  are  not  removable  from  office 
but  on  the  address  of  two-thirds  of  both  branches  of  the  Legislature. 
Mr.  D.  Davis  of  Boston  thought  it  absolutely  necessary  that  there 
should  be  some  modification  of  the  power  of  removal  granted  by  the 
constitution.     It  was  the  only  instance  of  any  government  of  law 
or  liberty  where  a  man  was  liable  to  be  tried,  condemned  and  pun- 
ished unheard  and  unseen.     The  constitution  contemplates  removal 
of  judges  from  office  for  two  causes  only.     For  crime,  by  impeach- 
ment on  the  grand  inquest  by  the  representatives — and  for  being 
disqualified  to  perform  the  duties  of  the  office   by  the  visitation  of 
God.     He  had  known  of  but  one  instance  of  the  removal  of  a  judge 
for  this  last  reason,  and  he  believed  it   was  the  general  opinion  that 


MASSACHUSETTS    CONVENTION.  479 

in  that  instance,  the  Legislature  would  have  done  better,  if  they  had 
waited  on  Providence  a  little  longer.  The  power  of  removal  by  ad- 
dress, which  was  intended  to  apply  only  to  cases  of  disqualification 
by  the  visitation  of  God,  in  fact  extended  much  farther,  and  was 
liable  to  be  abused.  It  was  a  defect  which  ought  to  be  remedied. 
We  had  the  example  of  the  regenerated  and  republican  state  of  Con- 
necticut. They  had  had  the  experience  of  a  dependent  judiciary 
— and  in  recently  establishing  their  constitution  they  had  adopted 
the  same  limitation  of  the  power  of  removal  which  was  proposed 
here.  If  the  resolution  were  before  the  committee  in  a  form 
which  admitted  of  amendment,  he  would  propose  to  alter  it  in  such 
manner  that  the  officer  to  be  removed  should  have  a  right  to  be 
heard.  No  reason  need  now  be  given  for  the  removal  of  a  judge, 
but  that  the  Legislature  do  not  like  him.  It  was  no  light  thing  that 
an  office  holden  on  the  tenure  of  good  behavior,  may  be  taken  away 
with  the  loss  of  character  which  it  naturally  involves,  and  the  per- 
son removed  not  even  know  the  reason  of  it. 

Mr.  Starkweather  of  Worthington  had  been  in  favor  of  the 
motion  for  striking  out  the  whole  resolution,  because  he  was  not 
sensible  that  it  was  capable  of  division,  for  he  would  rather  lose 
the  whole  than  adopt  the  whole.  But  it  being  divided  he  was  en- 
tirely in  favor  of  retaining  the  first  section,  and  hoped  it  would  not 
be  struck  out.  All  the  state  constitutions  but  two  contained  this 
limitation  of  the  power  of  removal. 

Mr.  Childs  of  Pittsfield  said  that  before  they  agreed  to  adopt 
this  resolution,  it  ought  to  be  shown  that  there  was  a  necessity  for 
it.  This  had  not  been  shown,  but  on  the  contrary  our  judiciary 
system  had  justly  been  the  boast  of  the  State.  It  was  m  violation 
of  an  important  principle  of  the  government  that  the  majority  of  the 
Legislature,  together  with  the  governor,  should  not  have  the  power 
of  removal  from  office.  This  power  was  in  accordance  with  the 
principle  of  the  bill  of  rights.  It  was  imperative  in  the  advocates  of 
this  resolution  to  show  that  it  was  necessary  to  intrench  this  depart- 
ment of  the  government  for  its  security.  They  had  not  shown  it ; 
on  the  contrary  we  were  in  the  full  tide  of  successful  experiment. 
The  founders  of  the  constitution  intended  to  put  the  judiciary  on  the 
footing  of  the  fullest  independence  consistent  with  their  responsibility. 
As  a  proof  that  they  had  done  this  he  appealed  to  the  character  of  our 
judiciary.  Who  knew  what  would  be  the  effect  if  they  were  to 
obtain  any  further  independence. 

Mr.  Cummings  of  Salem  rose  to  give  the  reasons  why  he  objected 
to  the  report  of  the  select  committee,  of  which  he  had  been  a  mem- 
ber. He  considered  that  part  of  the  constitution  as  perfect.  He 
had  heard  to-day,  with  surprise,  for  the  first  time,  that  judges  were 
not  considered  sufficiently  independent.  In  the  experience  of  forty 
years  we  had  never  found  out  that  they  were  not  independent. 
Were  they  not,  for  all  the  purposes  of  their  judicial  functions,  so  far 
as  they  do  right,  fully  independent  ?  We  had  been  referred  to  other 
states — but  our  government  was  differently  constituted  from   those 


480  MASSACHUSETTS    CONVENTION. 

of  the  states  alluded  to.  In  those  states  there  is  no  council.  In 
this  State  they  cannot  be  removed  on  address  of  the  Legislature, 
but  with  the  consent  of  the  council.  Was  not  this  a  sufficient 
guard  ?  Another  part  of  the  constitution  protects  them  when  ac- 
cused of  crimes.  This  provision  is  not  intended  to  embrace  cases 
of  crime — it  is  only  for  cases  when  they  become  incompetent  to 
discharge  their  duties.  May  not  the  people,  by  a  majority,  deter- 
mine whether  judges  are  incompetent?  We  came  to  amend  the 
constitution,  not  to  make  one.  If  no  inconvenience  has  been  found 
in  this  part,  we  ought  not  to  alter  it.  He  did  not  think  that  the 
proposed  amendment  would  make  the  judges  more  independent ;  it 
would  make  the  people  jealous  of  them.  We  have  the  experience 
of  forty  years  that  they  are  so,  and  the  evidence  of  the  framers  that 
they  thought  they  were  so  ;  because,  in  the  constitution  that  contains 
this  provision,  they  said  that  they  ought  to  be  independent. 

Mr.  Lincoln  was  not  fearful  of  being  charged  with  being  a  dem- 
agogue, or  with  advocating  a  measure  that  should  be  suspected  to 
favor  demagogues,  if  he  opposed  this  amendment.  He  was  entirely 
satisfied  with  the  constitution  as  it  was.  He  had  never  heard  till 
now,  and  was  now  surprised  to  hear,  that  there  was  any  want  of 
independence  in  the  judiciary.  He  had  heard  it  spoken  of  in  charges, 
sermons,  and  discourses  in  the  streets,  as  one  of  the  most  valua- 
ble features  of  the  constitution — that  it  established  an  independent 
judiciary.  He  inquired  was  it  dependent  on  the  Legislature  ? 
It  was  not  on  the  Legislature  nor  on  the  executive.  No  judge  could 
be  removed  but  by  the  concurrent  act  of  four  coordinate  branches 
of  the  government — the  house  of  representatives,  the  senate,  with 
a  different  organization  from  the  house,  the  governor,  and  the  coun- 
cil. Was  it  to  be  supposed  that  all  these  should  conspire  together 
to  remove  a  useful  judge  ?  But  it  was  argued  that  future  Legislatures 
might  be  corrupt.  This  was  a  monstrous  supposition.  He  would 
rather  suppose  that  a  judge  might  be  corrupt.  It  was  more  natural 
that  a  single  person  should  be  corrupt  than  a  numerous  body.  The 
proposed  amendment  was  said  to  be  similar  to  provisions  of  other 
governments.  There  was  no  analogy — because  other  governments 
are  not  constituted  like  ours.  It  was  said  that  judges  have  estates 
in  their  offices — he  did  not  agree  to  this  doctrine.  The  office  was 
not  made  for  the  judge,  nor  the  judge  for  the  office  ;  but  both  for 
the  people.  There  was  another  tenure — the  confidence  of  the  peo- 
ple. It  was  that  which  had  hitherto  occurred  here.  Have  we 
then  less  reason  to  confide  in  posterity,  than  our  ancestors  had  to 
confide  in  us  ? 

Mr.  Webster  submitted  whether  time  should  not  be  given  until 
morning,  that  the  chairman  of  the  select  committee,  who  had  been 
detained  by  illness,  and  who  was  expected  to-morrow,  might  be 
present  to  take  a  share  in  the  debate,  especially  as  the  usual  hour  of 
adjournment  had  arrived,  and  as  they  could  not  go  through  the 
report,  he  moved  that  the  committee  rise.  The  motion  was  nega- 
tived—121  to  214. 


MASSACHUSETTS    CONVENTION.  481 

Mr.  Freeman  of  Sandwich  wished  to  present  some  views,  differ- 
ent from  what  had  been  given.  He  said  he  had  a  right  to  speak  of 
times  that  were  past,  and  of  Legislatures  that  had  been.  We  had 
seen  a  disposition  in  Legislatures  to  exercise  their  power  over  courts, 
for  party  purposes.  The  old  courts  of  common  pleas  were  abolished 
and  the  circuit  courts  established  in  their  place.  He  believed  the 
change  a  good  one,  but  asked  were  there  not  other  motives  than  the 
furtherance  of  public  justice,  for  which  this  change  was  made.  He 
referred  to  the  changes  in  the  courts  of  sessions.  He  gave  other 
reasons  founded  on  the  history  of  the  past,  for  believing  that  the 
time  would  come  when,  if  the  resolution  was  not  adopted,  judges 
would  be  removed  for  party  purposes. 

Mr.  Slocum  said  that  the  resolution  did  not  go  far  enough.  It 
was  a  bad  rule  that  did  not  go  both  ways.  If  it  required  two  thirds 
of  the  council  to  make  an  appointment  he  should  be  satisfied. 

Mr.  Webster  rose  to  address  the  chair,  but  yielded  to  a  motion 
for  the  committee  to  rise,  which  was  negatived — 128  to  213. 

Mr.  Holmes  of  Rochester  said  that  the  government  of  the  Com- 
monwealth was  composed  of  three  distinct  branches.  The  execu- 
tive, legislative  and  judiciary.  The  Convention  had  expressed  their 
unanimous  opinion,  that  these  ought  to  be  kept  distinct  and  inde- 
pendent. But  those  who  have  opposed  the  report  contended,  that 
the  judiciary  is  at  present  independent  of  the  executive  and  legis- 
lative departments  both  together.  If  he  thought  so,  he  should  not 
have  troubled  the  committee  with  any  remarks.  It  seemed  to  him 
impossible,  that  it  should  not,  on  a  moment's  consideration,  appear 
otherwise.  It  was  a  kind  of  independence  he  had  no  idea  of. 
That  they  could  not  be  removed  by  either  the  representatives,  or 
the  senate,  or  the  executive,  was  true  :  but  that  they  could  be  re- 
moved by  all  united,  was  as  true.  What  was  the  council  but  a 
creature  of  the  two  branches?  When  the  two  branches  of  the 
General  Court  vote  to  sweep  the  bench  of  the  supreme  court,  would 
not  the  council  be  sure  to  concur  ?  Those  bodies  were  so  nearly 
connected,  that  they  would  generally  act  in  concurrence.  When  a 
judicial  officer  has  been  guilty  of  mal-administration,  he  will  be 
removed  by  impeachment.  When  it  was  necessary  to  remove  a 
judge  for  any  other  cause,  he  thought  that  two  thirds  of  both 
branches  would  always  concur  in  the  removal.  He  was,  therefore, 
in  favor  of  the  report. 

Mr.  Dearborn  of  Roxbury  renewed  the  motion  for  the  commit- 
tee to  rise.     Negatived — 133  to  176. 

Mr.  Webster.  Regrets  are  vain  for  what  is  past,  yet  I  hardly 
know  how  it  has  been  thought  to  be  a  regular  course  of  proceed- 
ing, to  go  into  committee  on  this  subject,  before  taking  up  the  sev- 
eral propositions  which  now  await  their  final  readings  on  the  Presi- 
dent's table.  The  consequence  is  that  this  question  comes  on  by 
surprise.  The  chairman  of  the  select  committee  is  not  present — 
many  of  the  most  distinguished  members  of  the  Convention  are 
personally  so  situated  as  not  to  be  willing  to  take  part  in  the  debate, 
61 


482  MASSACHUSETTS    CONVENTION. 

— and  the  first  law  officer  of  the  government,  a  member  of  the 
committee,  happens  at  this  moment  to  be  in  a  place  (the  chair  of 
the  committee  of  the  whole)  which  deprives  us  of  the  benefit  of 
his  observations.  Under  these  circumstances,  I  had  hoped  the  com- 
mittee would  rise.  It  has,  however,  been  determined  otherwise, 
and  I  must  therefore  beg  their  indulgence  while  I  make  a  few  ob- 
servations. As  the  constitution  now  stands,  all  judges  are  liable  to 
be  removed  from  office  by  the  governor,  with  the  consent  of  the 
council,  on  the  address  of  the  two  houses  of  the  Legislature.  It  is 
not  made  necessary  that  the  two  houses  should  give  any  reasons  for 
their  address,  or  that  the  judge  should  have  an  opportunity  to  be 
heard.  I  look  upon  this  as  against  common  right,  as  well  as  repug- 
nant to  the  general  principles  of  the  government.  The  commission 
of  the  judge  purports  to  be,  on  the  face  of  it,  during  good  behavior. 
He  has  an  interest  in  his  office.  To  give  an  authority  to  the  Leg- 
islature to  deprive  him  of  this,  without  trial  or  accusation,  is  mani- 
festly to  place  the  judges  at  the  pleasure  of  the  Legislature.  The 
question  is  not  what  the  Legislature  probably  will  do,  but  what 
they  may  do.  If  the  judges,  in  fact,  hold  their  offices  only  so  long 
as  the  Legislature  see  fit,  then  it  is  vain  and  illusory  to  say  that  the 
judges  are  independent  men,  incapable  of  being  influenced  by  hope 
or  by  fear :  but  the  tenure  of  their  office  is  not  independent.  The 
general  theory  and  principle  of  the  government  is  broken  in  upon, 
by  giving  the  Legislature  this  power.  The  departments  of  govern- 
ment are  not  equal,  co-ordinate  and  independent,  while  one  is  thus 
at  the  mercy  of  the  others.  What  would  be  said  of  a  proposition  to 
authorize  the  governor  or  judges  to  remove  a  senator  or  member  of 
the  house  of  representatives  from  office  ?  And  yet  the  general  theory 
of  the  constitution  is  to  make  the  judges  as  independent  as  mem- 
bers of  the  Legislature.  I  know  not  whether  a  greater  improve- 
ment has  been  made  in  government  than  to  separate  the  judiciary 
from  the  executive  and  legislative  branches,  and  to  provide  for  the 
decision  of  private  rights,  in  a  manner  wholly  uninfluenced  by  rea- 
sons of  state,  or  considerations  of  party  or  of  policy.  It  is  the 
glory  of  the  British  constitution  to  have  led  in  the  establishment  of 
this  most  important  principle.  It  did  not  exist  in  England,  before 
the  revolution  of  1688,  and  its  introduction  has  seemed  to  give  a 
new  character  to  the  tribunals.  It  is  not  necessary  to  state  the  evils 
which  had  been  experienced,  in  that  country,  from  dependent  and 
time-serving  judges.  In  matters  of  mere  property,  in  causes  of  no 
political  or  public  bearing,  they  might  perhaps  be  safely  trusted  : 
but  in  great  questions  concerning  public  liberty,  or  the  rights  of  the 
subject,  they  were,  in  too  many  cases,  not  fit  to  be  trusted  at  all. 
Who  would  now  quote  Scroggs.  or  Saunders,  or  Jeffries,  on  a  ques- 
tion concerning  the  right  of  the  habeas  corpus,  or  the  right  of  suf- 
frage, or  the  liberty  of  the  press,  or  any  other  subject  closely  con- 
nected with  political  freedom  ?  Yet  on  all  these  subjects,  the  sen- 
timents of  the  English  judges,  since  the  revolution,  of  Somers, 
Holt,  Treby,  Jekyl.  <fcc.  are.  in  general,  favorable  to  civil   liberty. 


MASSACHUSETTS    CONVENTION.  483 

and  receive  and  deserve  great  attention,  whenever  referred  to.      In- 
deed, Massachusetts  herself  knows,  by  her  own  history,  what  is  to 
be  expected  from  dependent  judges.     Her  own  charter  was  declared 
forfeited  without  a  hearing,  in  a  court  where  such  judges  sat.    When 
Charles   the  Second,  and  his  brother  after  him,  attempted   the  de- 
struction of  chartered  rights,  both  in   the  kingdom  and  out  of  it, 
the   mode  was.  by  judgments  obtained   in   the   courts.     It  is  well 
known  that  after  the  prosecution  against  the  city  of  London  was 
commenced,  and  while  it  was  pending,  the  judges  were   changed, 
and  Saunders,  who  had  been  consulted  on  the  occasion,  and    had 
advised  the   proceeding  on  the  part  of  the  crown,  was  made  chief 
justice  for  the   very  purpose   of  giving  a  judgment   in  favor  of  the 
crown  ;  his  predecessor  being  removed  to  make  room  for  him.    Since 
the  revolution  of  1688,  an  entire   new  character  has  been  given  to 
English  judicature.     The  judges  have  been  made  independent,  and 
the  benefit  has  been  widely  and  deeply  felt.     A  similar   improve- 
ment seems  to  have  made  its  way  in  Scotland.     Before  the  union 
of  the  kingdoms  it  cannot  be  said  that  there  was  any  judicial  inde- 
pendence in  Scotland,  and  the  highest  names  in  Scottish  jurispru- 
dence have  been  charged  with  being  under  influences  which  could 
not,  in  modern  times,  be  endured.     It  is  even  said,  that  the  prac- 
tice of  entails  did  not   extensively  exist  in  Scotland,  till  about  the 
time  of  the  reigns  of  the  last   princes  of  the   Stuart  race,  and  was 
then   introduced  to  guard  against  unjust  forfeitures.     It  is  strange 
indeed,  that  this  should  happen  at  so  late  a  period,  and  that  a  most 
unnatural  and  artificial   state  of  property  should  be  owing  to  the 
fear  of  dependent  judicatures.     I  might  add  here,  that  the  heritable 
jurisdictions,  the  greatest  almost  of  all  evils,  were  not  abolished  in 
Scotland,  till  about  the  middle  of  the  last  century  ;  so  slowly  does 
improvement  make  progress  when   opposed  by  ignorance,  prejudice 
or  interest.     In  our  own  "country,  it  was  for  years  a  topic  of  com- 
plaint, before  the  revolution,  that  justice  was  administered,  in  some 
of  the  colonies,  by  judges  dependent  on   the  British  crown.     The 
Declaration   of  Independence   itself  puts  forth  this  as  a  prominent 
grievance,  among  those  which  justified  the  revolution.     The  Brit- 
ish king,  it  declares,  '-had  made  judges  dependent  on  his  own  will 
alone  for  the   tenure   of  their  offices.''     It  was  therefore  to  be  ex- 
pected, that  in  establishing  their  own  governments,  this   important 
point  of  the  independence  of  the  judicial  power  would  be  regarded 
by  the  states.    Some  of  them  have  made  greater,  and  others  less  pro- 
vision on  this  subject ;  the  more  recent  constitutions,  I  believe,  being 
generally  framed  with  the  most  and   best  guards  for  judicial  inde- 
pendence.    Those  who  oppose  any  additional  security  for  the  ten- 
ure of  judicial  office,  have  pressed  to  know  what  evil  has  been  ex- 
perienced— what  injury  has  arisen   from  the  constitution  as   it  is. 
Perhaps  none  ; — but  if   evils  probably  may  arise,  the  question  is, 
whether  the  subject  be  not  so  important  as  to  render  it   prudent  to 
guard  against  that  evil.     If  evil  do  arise,  we  may  be  sure  it  will  be 
a  great  evil ;  if  this  power  should  happen  to  be  abused,  it  would 


484  MASSACHUSETTS    CONVENTION. 

be  most  mischievous  in  its  consequences.  It  is  not  a  sufficient 
answer  to  say,  that  we  have,  as  yet,  felt  no  inconvenience.  We 
are  bound  to  look  to  probable  future  events.  We  have,  too,  the  ex- 
perience of  other  states.  Connecticut,  having  had  judges  appointed 
annually,  from  the  time  of  Charles  the  Second,  in  the  recent  alter- 
ation of  her  constitution,  has  provided  that  hereafter  they  shall 
hold  their  office  during  good  behavior,  subject  to  removal  on  the 
address  of  two  thirds  of  each  house  of  the  legislature.  In  Penn- 
sylvania, the  judges  may  be  removed,  "  for  any  reasonable  cause," 
on  the  address  of  two  thirds  of  the  two  houses.  In  some  of  the 
states  three  fourths  of  each  house  is  required.  The  new  constitu- 
tion of  Maine  has  a  provision,  with  which  I  should  be  content ; 
which  is,  that  no  judge  shall  be  liable  to  be  removed  by  the  legis- 
lature till  the  matter  of  his  accusation  has  been  made  known  to 
him,  and  he  has  had  an  opportunity  of  being  heard  in  his  defence. 
This  seems  no  more  than  common  justice  ;  and  yet  it  is  much 
greater  than  any  security  which  at  present  exists  in  the  constitution 
of  this  Commonwealth.  It  will  be  found,  if  I  mistake  not,  that 
there  are  not  more  than  two  or  three,  out  of  all  the  states,  which 
have  left  the  tenure  of  judicial  office  at  the  entire  pleasure  of  the 
legislature.  It  cannot  be  denied,  that  one  great  object  of  written 
constitutions  is  to  keep  the  departments  of  government  as  distinct 
as  possible  ;  and  for  this  purpose  to  impose  restraints.  And  it  is 
equally  true,  that  there  is  no  department  on  which  it  is  more  nec- 
essary to  impose  restraints  than  the  Legislature.  The  tendency  of 
things  is  almost  always  to  augment  the  power  of  that  department, 
imits  relation  to  the  judiciary.  The  judiciary  is  composed  of  few 
persons,  and  those  not  such  as  mix  habitually  in  the  pursuits  and 
objects  which  most  engage  public  men.  They  are  not,  or  never 
should  be,  political  men.  They  have  often  unpleasant  duties  to 
perform,  and  their  conduct  is  often  liable  to  be  canvassed  and  cen- 
sured, where  their  reasons  for  it  are  not  known,  or  cannot  be  under- 
stood. The  Legislature  holds  the  public  purse.  It  fixes  the  com- 
pensation of  all  other  departments — it  applies,  as  well  as  raises,  all 
revenue.  It  is  a  numerous  body,  and  necessarily  carries  along  with 
it  a  great  force  of  public  opinion.  Its  members  are  public  men,  in 
constant  contact  with  one  another,  and  with  their  constituents.  It 
would  seem  to  be  plain  enough,  that  without  constitutional  provis- 
ions which  should  be  fixed  and  certain,  such  a  department,  in  case 
of  excitement,  would  be  able  to  encroach  on  the  judiciary.  There- 
fore is  it  that  a  security  of  judicial  independence  becomes  neces- 
sary ;  and  the  question  is  whether  that  independence  be  at  present 
sufficiently  secured.  The  constitution  being  the  supreme  law,  it 
follows,  of  course,  that  every  act  of  the  Legislature,  contrary  to 
that  law,  must  be  void.  But  who  shall  decide  this  question  ?  Shall 
the  Legislature  itself  decide  it?  If  so,  then  the  constitution  ceases 
to  be  a  legal  and  becomes  only  a  moral  restraint  on  the  Legislature. 
If  they,  and  they  only,  are  to  judge  whether  their  acts  be  conform- 
"  ' *  fo  the   constitution,  then  the  constitution  is  admonitory  or  ad- 


MASSACHUSETTS     CONVENTION.  485 

visory  only,  not  legally  binding  ;  because  if  the  construction  of  it 
rests  wholly  with  them,  their  discretion,  in  particular  cases,  may  be 
in  favor  of  very  erroneous  and  dangerous  constructions.  Hence  the 
courts  of  law  necessarily,  when  the  case  arises,  must  decide  upon 
the  validity  of  particular  acts.  These  cases  are  rare,  at  least  in  this 
Commonwealth ;  but  they  would  probably  be  less  so,  if  the  power 
of  the  judiciary  in  this  respect  were  less  respectable  than  it  is.  It 
is  the  theory  and  plan  of  the  constitution  to  restrain  the  Legislature, 
as  well  as  other  departments,  and  to  subject  their  acts  to  judicial  de- 
cision, whenever  it  appears  that  such  acts  infringe  constitutional 
limits — and  without  this  check,  no  certain  limitation  could  exist  on 
the  exercise  of  legislative  power.  The  constitution,  for  example, 
declares,  that  the  Legislature  shall  not  suspend  the  benefit  of  the 
writ  of  habeas  corpus,  except  under  certain  limitations.  If  a  law 
should  happen  to  be  passed,  restraining  personal  liberty,  and  an  in- 
dividual, feeling  oppressed  by  it,  should  apply  for  his  habeas  corpus, 
must  not  the  judges  decide  what  is  the  benefit  of  habeas  corpus, 
intended  by  the  constitution  ;  what  it  is  to  suspend  it,  and  whether 
the  act  of  the  Legislature  do,  in  the  given  case,  conform  to  the  con- 
stitution ?  All  these  questions  would  of  course  arise.  The  judge 
is  bound  by  his  oath  to  decide  according  to  law.  The  constitution 
is  the  supreme  law.  Any  act  of  the  Legislature,  therefore,  incon- 
sistent with  that  supreme  law,  must  yield  to  it :  and  any  judge,  see- 
ing this  inconsistency,  and  yet  giving  effect  to  the  law,  would  vio- 
late both  his  duty  and  his  oath.  But  it  is  evident  that  this  power, 
to  be  useful,  must  be  lodged  in  independent  hands.  If  the  Legis- 
lature may  remove  judges  at  pleasure,  assigning  no  cause  for  such 
removal,  of  course  it  is  not  to  be  expected  that  they  would  often 
find  decisions  against  the  constitutionality  of  their  own  acts.  If 
the  Legislature  should,  unhappily,  be  in  a  temper  to  do  a  violent 
thing,  it  would  probably  take  care  to  see  that  the  bench  of  justice 
was  so  constituted  as  to  agree  with  it,  in  opinion.  It  is  unpleasant 
to  allude  to  other  states,  for  negative  examples  ;  yet  if  any  one 
were  inclined  to  the  inquiry,  it  might  be  found,  that  cases  had  hap- 
pened, in  which  laws  known  to  be,  at  best,  very  questionable,  as  to 
their  consistency  with  the  constitution,  had  been  passed,  and  at  the 
same  session,  effectual  measures  taken,  under  the  power  of  removal 
by  address,  to  create  a  new  bench.  Such  a  coincidence  might  be 
accidental  ;  but  the  happening  of  such  accidents  often  would  de- 
stroy the  balance  of  free  governments.  The  history  of  all  the 
states,  I  believe,  shows  the  necessity  of  settled  limits  to  legislative 
power.  There  are  reasons,  entirely  consistent  with  upright  and 
patriotic  motives,  which  nevertheless  evince  the  danger  of  legisla- 
tive encroachments.  The  subject  is  fully  treated  by  Mr.  Madison, 
in  some  numbers  of  the  Federalist,  which  well  deserve  the  consid- 
eration of  the  Convention. 

There  is  nothing  after  all  so  important  to  individuals  as  the  up- 
right administration  of  justice.  This  comes  home  to  every  man ; 
life,  liberty,  reputation,  property,  all  depend  on  this.     No  govern- 


486  MASSACHUSETTS    CONVENTION. 

ment  does  its  duty  to  the  people,  which  does  not  make  ample  and 
stable  provision  for  the  exercise  of  this  part  of  its  powers.     Nor  is 
it  enough  that  there  are  courts  which  will  deal  justly  with  mere 
private  questions.     We  look  to  the  judicial  tribunal  for  protection 
against  illegal  or  unconstitutional  acts,  from  whatever  quarter  they 
may  proceed.     The  courts  of  law,  independent  judges,  and  enlight- 
ened juries,  are  citadels  of  popular  liberty,  as  well  as  temples  of 
private  justice.     The  most  essential  rights  connected  with  political 
liberty,  are  there  canvassed,  discussed,  and  maintained  :   and  if  it 
should  at  any  time  so  happen,  that  these  rights  should  be  invaded, 
there  is  no  remedy  but  a  reliance  on  the  courts  to  protect  and  vin- 
dicate  them.     There   is  danger  also,   that  legislative  bodies  will 
sometimes  pass  laws  interfering  with  other  private  rights,  besides 
those  connected  with  political  liberty.     Individuals  are  too  apt  to 
apply  to  the  legislative  power  to  interfere  with  private  cases,  or  pri- 
vate property ;   and  such  applications  sometimes  meet  with  favor 
and  support.     There  would  be  no  security,  if  these  interferences 
were  not  subject  to  some  subsequent  constitutional  revision,  where 
all  parties  could  be  heard,  and  justice  administered  according  to 
standing  laws.     These  considerations  are  among  those,  which,  in 
my  opinion,  render  an  independent  judiciary  equally  essential  to  the 
preservation   of  private   rights  and  public   liberty.      I  lament  the 
necessity  of  deciding  this  question  at   the  present  moment;    and 
should  hope,  if  such  immediate  decision  were  not  demanded,  that 
some  modification  of  this  report  might  prove  acceptable  to  the  com- 
mittee, since,  in  my  judgment,  some  provision  beyond  what  exists 
in  the  present  constitution,  is  necessary. 

The  question  was  taken  on  striking  out,  and  decided  in  the  affirm- 
ative, 210  to  105. 

Mr.  Webster  gave  notice  that  he  should  move  to  insert,  in  place 
of  the  clause  struck  out,  a  provision  that  judicial  officers  should  not 
be  removed  on  address,  until  the  causes  of  removal  were  stated,  and 
such  officers  heard  in  their  defence. 

A  motion  was  made  that  the  committee  rise  and  report  progress, 
which  was  agreed  to. 

Mr.  Webster  moved  that  the  Convention  should  go  into  com- 
mittee of  the  whole  on  this  subject,  on  Monday  next.  Negatived, 
93  to  124. 

It  was  then  agreed  to  go  into  committee  on  this  subject,  tomor- 
row, at  11  o'clock. 

At  half-past  3  in  the  afternoon,  the  House  adjourned. 


Saturday,  December  30. 

The  House  met  at  half-past  9  o'clock,  and  the  journal  of  yester- 
day was  read. 

Mr.  Prince  of  Boston  offered  a  resolution  respecting  the  removal 
of  judicial   officers,  which   was  referred   to   the  committee  of  the 


MASSACHUSETTS    CONVENTION.  487 

whole  on  the  judiciary,  and  was  afterwards  acted  upon  by  that  com- 
mittee. 

The  resolution  offered  by  Mr.  Dana,  for  abolishing  the  office  of 
solicitor  general,  as  soon  as  it  should  become  vacant,  was  taken  up, 
as  reported  by  a  committee  of  the  whole. 

Mr.  S.  Porter  of  Hadley  was  opposed  to  taking  away  from  the 
Legislature  the  power  of  creating  an  officer  of  this  kind  in  future,  if 
circumstances  should  make  it  necessary. 

Mr.  Freeman  of  Sandwich  said  he  had  no  objection  to  the  office 
being  abolished,  when  the  Legislature  should  think  proper  to  pass 
an  act  for  that  purpose,  but  he  would  not  deprive  the  Legislature  of 
the  power  of  creating  it  again,  if  it  should  become  necessary  tc 
have  such  an  officer.  He  considered  that  this  would  be  the  effect 
of  the  present  resolution,  and  likewise  that  the  tenure  of  the  office 
would  be  altered,  so  as  to  give  the  present  incumbent  a  life  estate 
in  it. 

Mr.  Dana  said  he  had  no  desire  to  diminish  the  number  of  offices 
so  far  as  concerned  the  benefit  to  be  derived  by  incumbents,  but  he 
thought  this  one  unnecessary,  and  that  he  should  not  discharge  his 
duty  to  his  constituents,  without  making  an  attempt  to  have  it  abol- 
ished. He  thought  that  the  county  attorneys,  living  near  the  spot 
where  an  offence  should  be  committed,  would  be  able  to  prepare 
the  cause  better  than  the  solicitor  general,  living  at  fifty  miles  dis- 
tance, and  the  State  would  be  saved  an  annual  expense  of  $2000. 
That,  although  the  office  remained  vacant  for  twenty  years  after 
the  adoption  of  the  constitution,  yet  as  we  had  been  accustomed  to 
see"  it  filled,  the  governor  and  council  would  be  troubled  with  solic- 
itations for  the  appointment  after  the  office  became  vacant,  although 
the  office  had  now  ceased  to  be  necessary.  The  best  way,  therefore, 
was  to  abolish  it. 

Mr.  Q,uincy  said  the  office  was  created  by  the  Legislature  and 
not  by  the  constitution — and  the  governor  could  no  longer  appoint, 
if  the  statute  should  be  repealed.  The  operation  of  this  resolution 
would  prevent  the  Legislature,  in  all  future  time,  from  creating  this 
office.  The  provisions  in  the  constitution  were  intended  to  apply, 
whenever  the  Legislature  should  think  it  proper  that  the  office 
should  exist. 

Mr.  Rantoul  of  Beverly  said  he  should  have  no  objection  to  the 
office  being. dispensed  with,  whenever  the  arrangement  of  the  terms 
of  the  courts  should  permit.  The  Legislature  could  judge  of  this, 
and  they  had  the  power  to  pass  an  act  for  dispensing  with  the  office. 
This  resolution  would  put  it  out  of  their  power  during  the  life  of 
the  present  incumbent,  and  would  prevent  their  establishing  the 
office  in  future,  when  circumstances  might  make  it  necessary.  The 
consequence  would  be,  that  we  should  have  two  such  officers  as  the 
attorney  and  solicitor  general,  but  the  latter  under  a  different  name. 

Mr.  Walter  of  Boston  saw  no  force  in  the  reasons  which  had 
been  urged  for  retaining  the  office,  and  he  thought  it  ought  to  be 
abolished. 


488  MASSACHUSETTS    CONVENTION. 

Mr.  Sullivan  of  Boston  said  that  formerly  all  the  judges  of  the  su- 
preme court  sat  together  on  all  trials,  and  the  attorney  general  could 
always  attend  them.    This  was  the  reason  that  for  twenty  years  after 
the  adoption  of  the  constitution,  there  had  been  no  solicitor  general. 
He  was  one  of  the  committee  of  the  Legislature  which  thought  one 
judge  was  sufficient  to  try  questions  of  fact,  and  a  different  organ- 
ization of  the  court  took  place.     After  the  alteration  was  adopted, 
it  became  necessary  to  have  the  different  judges  hold  courts  in  dif- 
ferent counties  at  the  same  time.     Each  of  these  judges  had  juris- 
diction of  all  important  offences  which  were  not  capital,  and  it  was 
proper  that  an  able  lawyer  should  attend  them  to  take  care  of  the 
interests  of  the  Commonwealth.    What,  he  asked,  makes  a  lawyer  ? 
Not  merely  reading  law  books ;  but  reading,  accompanied  with  the 
extensive  practice  in  courts ;  and  for  a  public  prosecution,  practice  in 
the  criminal  branch  of  the  law.     This  was  not  like  the  business  of 
lawyers  generally,  which  commonly  relates  to  cases  of  property  ;  it 
was  a  distinct  profession.     County  attorneys  could  not  be  so  well 
qualified  for  public  prosecutions,  as  those  who  were  engaged  in  a 
greater  variety  of  criminal  cases  than  one  county  afforded.     The 
duties  of  the  attorney  and  solicitor  general,  he  had  reason  to  know, 
were  very  important  and  very  laborious.     They  had  a  great  deal  to 
do  in  examining  the  accounts  of  witnesses  and  other  persons,  in 
order  to  prevent  them  from  fleecing  the  Commonwealth.     Thou- 
sands of  dollars  were  saved  to  the  State  by  these  officers,  sums  far 
beyond  the  amount  of  their  salaries.     He  thought  the  office  of  solic- 
itor general  necessary ;  but  if  not,  there  was  no  reason  for  taking 
away  from  the  Legislature  the  power  to  create  or  abolish  the  office, 
as  circumstances  should  require.     He  would  mention  another  thing. 
He  had  noticed  that  laws  were  frequently  passed  by  the  Legisla- 
ture, in  a  form  which  reflected  disgrace  upon  the  Commonwealth. 
There  ought  to  be  some  accurate  lawyer  appointed,  with  a  salary, 
to  revise  them  before  they  are  promulgated.     He  thought  that  the 
two  law  officers  of  the  government  might  perform  this  duty,  and 
that  they  might  also  be  useful  in  giving  opinions  to  the  Legislature 
in  relation  to  laws  proposed  to  be  passed.     He  said  it  would  be  in- 
vidious to  abolish  a  particular   office  ;   and  to   say  that  it  should 
continue  for  the  life  of  the  present  incumbent,  would  have  an  un- 
pleasant aspect,  which  he  thought  the  honorable  mover  of  the  res- 
olution would  choose  to  avoid. 

The  question  was  taken  for  the  resolution  passing  to  a  second 
reading,  and  decided  in  the  negative — 124  to  129. 

Leave  of  absence  was  granted  to  Mr.  Lyman  of  Goshen. 
It  was  proposed  to  give  a  first  reading  to  the  resolutions  reported 
by  the  committee  of  the  whole,  on  the  declaration  of  rights. 

Mr.  Nichols  hoped  it  would  be  postponed  till  Tuesday,  in  order 
that  there  might  be  a  fuller  House,  as  the  gentleman  from  Pittsfield 
intended  to  renew  his  proposition,  for  the  purpose  of  taking  the 
yeas  and  nays  upon  it.     No  vote  was  taken  on  the  subject. 


MASSACHUSETTS    CONVENTION.  489 

Judiciary  Power. — The  Convention  then  went  into  committee 
of  the  whole,  on  the  unfinished  husiness  of  yesterday,  viz.,  the 
report  of  the  select  committee  on  that  part  of  the  constitution  relat- 
ing to  the  judiciary  :   Mr.  Morton  in  the  chair. 

The  question  was  stated  on  the  adoption  of  the  other  part  of  Mr. 
Austin's  motion,  viz.,  to  insert  in  the  place  of  the  part  of  the  reso- 
lution struck  out,  a  resolution  that  it  is  not  expedient  to  make  any 
further  amendment  in  the  part  of  the  constitution  relating  to  the 
judiciary. 

Mr.  Webster  moved  to  amend  the  amendment  in  conformity 
with  the  resolution  offered  by  Mr.  Prince,  by  striking  out  all  after 
the  word  resolved,  and  inserting 

That  it  is  expedient  so  to  amend  the  constitution  as  to  provide  that  no  address  for 
the  removal  of  any  judicial  officer,  shall  pass  either  house  of  the  General  Court,  until 
the  causes  of  removal  are  first  stated,  and  entered  on  the  journal  of  the  house  in 
which  it  originated,  and  a  copy  thereof  served  on  the  person  in  office,  that  he  may 
be  admitted  to  a  hearing  in  his  defence. 

Mr.  Dana  thought  this  was  an  amendment  founded  in  substantial 
justice,  and  that  it  would  strike  the  minds  of  every  gentleman 
agreeably. 

The  amendment  was  agreed  to,  by  a  large  majority,  and  the  res- 
olution, as  amended,  was  then  agreed  to. 

The  second  resolution,  that  it  is  inexpedient  to  retain  that  article 
of  the  constitution  which  requires  the  judges  of  the  supreme  court 
to  answer  questions  proposed  to  them  by  the  governor  and  council, 
or  either  branch  of  the  Legislature,  was  then  read. 

Mr.  Story  of  Salem  said  that  it  was  exceedingly  important  that 
the  judiciary  department  should,  in  the  language  of  the  constitu- 
tion, be  independent  of  the  other  departments ;  and  for  this  purpose, 
that  it  should  not  be  in  the  power  of  the  latter  to  call  in  the  judges 
to  aid  them  for  any  purpose.  If  they  were  liable  to  be  called  on, 
there  was  extreme  danger  that  they  would  be  required  to  give  opin- 
ions in  cases  which  should  be  exclusively  of  a  political  character. 
There  were  two  classes  of  cases  in  which  the  Legislature  may  de- 
mand the  opinion  of  the  judges — those  of  a  public  and  those  of  a 
private  nature.  A  question  may  be  proposed  in  which  the  whole 
political  rights  of  the  State  are  involved.  It  is  impossible  that  there 
should  be  an  argument,  and  the  individual  most  interested,  will  be 
deprived  of  a  right  which  is  secured  to  every  person  by  the  consti- 
tution, that  of  being  heard.  Questions  of  fact  and  of  law  may  be 
decided  without  argument  and  without  a  jury.  There  was  no 
necessity  for  such  a  provision.  In  cases  where  it  is  necessary  to 
obtain  a  judicial  decision,  the  Legislature  may,  by  resolve,  order  a 
suit  to  be  brought  to  try  any  question  of  law  or  fact,  and  have  it 
regularly  argued.  Why  then  should  the  great  principle  be  violated 
by  taking  away  the  right  of  trial  by  jury  ?  The  power  of  calling 
on  the  judges  for  their  opinion,  may  be  resorted  to  in  times  of  po- 
litical excitement,  with  the  very  view  to  make  them  odious,  and  to 
effect  their  removal  from  office.  A  better  opportunity  could  not  be 
afforded  to  an  artful  demagogue,  for  effecting  the  purpose  of  their  re- 
62 


490  MASSACHUSETTS    CONVENTION. 

moval,  than  by  drawing  from  them  opinions  opposed  to  the  strong 
popular  sentiment,  and  subjecting  them  to  popular  odium.  It  ought 
not  to  be  in  the  power  of  the  other  departments  to  involve  the  judicia- 
ry in  this  manner.  As  the  constitution  now  stands,  the  judges  are 
bound  to  give  their  opinions  if  insisted  upon,  even  in  a  case  where  pri- 
vate rights  are  involved,  and  without  the  advantage  of  an  argument. 
However  great  the  talents  of  the  judges,  however  extensive  their 
learning,  they  are  never  safe  in  deciding  without  an  argument. 
Some  judges  of  the  greatest  learning  make  it  a  rule,  that  no  opin- 
ion which  they  have  given  without  argument,  shall  be  binding 
upon  themselves,  or  on  others.  The  greatest  judges  have  some- 
times changed  their  opinion  on  argument.  They  ought  always  to 
have  the  aid  of  the  talents  of  the  bar,  before  pronouncing  their 
opinion.  The  right  of  being  heard,  and  the  practice  of  arguing  all 
questions  has,  more  than  anything  else,  preserved  the  uniformity  of 
the  common  law.  He  did  not  know  that  there  was  the  slightest 
objection  to  the  proposed  amendment.  It  had  the  assent  of  nearly 
all,  in  not  all  the  select  committee. 

The  resolution  was  agreed  to,  by  a  large  majority. 

The  third  resolution  which  fixes  the  tenure  of  office  of  justices 
of  the  peace  and  notaries  public,  and  provides  that  they  may  be  re- 
moved upon  the  address  of  two-thirds  of  the  members  present  of 
each  house  of  the  Legislature,  was  read. 

Mr.  Story  moved,  for  the  purpose  of  conforming  the  resolution 
to  the  first  as  amended,  to  amend  by  striking  out  "two-thirds,"  and 
inserting  majority. 

Mr.  Varnum  inquired  the  object  of  the  resolution. 

Mr.  Story  said  that  doubts  had  arisen  whether  justices  of  the 
peace  were  removable  by  address.  The  first  article  relating  to  the 
judiciary  power,  provides  that  all  judicial  officers  shall  hold  their 
offices  during  good  behavior,  except  such,  concerning  whom  there 
is  different  provision  made — provided  nevertheless,  that  the  gov- 
ernor, with  consent  of  council,  may  remove  them  upon  the  address 
of  both  houses  of  the  Legislature.  The  doubt  was  whether  the 
power  of  removal  extended  to  those  who  were  excepted  in  the  ten- 
ure of  the  office.  It  was  not  a  doubt  of  his  own — he  did  not  mean 
to  give  an  opinion  on  it ;  but  the  committee  were  of  opinion  that 
the  power  ought  to  exist,  and  if  there  was  any  doubt  it  should  be 
removed. 

The  resolution  was  agreed  to. 

The  fifth  resolution  was  read  and  agreed  to. 

The  resolution  of  the  same  committee,  on  a  motion  referred  to 
them  that  it  is  inexpedient  to  make  any  provision  in  the  constitu- 
tion against  imprisonment  for  debt,  was  read  and  agreed  to — 
297  to  2. " 

The  resolution  offered  by  Mr.  Beach  for  limiting   to  years 

the  term  of  office  of  judges,  and  providing  that  they  might  be  reap- 
pointed on  the  expiration  of  the  term,  and  that  they  should  not  hold 
their  offices  after  a  certain  age,  was  read. 


i 

MASSACHUSETTS    CONVENTION.  491 

Mr.  Beach  wished  the  subject  might  be  postponed  to  Wednesday- 
next.  His  object  was  that  the  first  resolution  of  the  judiciary  com- 
mittee might  be  first  acted  on.  If  the  course  taken  upon  that  should 
give  him  an  opportunity,  he  should  consider  it  his  duty  further  to  il- 
lustrate on  the  motion.  He  therefore  moved  that  the  committee  rise. 
Negatived. 

Mr.  Prince  moved  to  fill  the  blank  with  forty  years.  Motion 
was  withdrawn,  and  the  resolution  negatived,  four  or  five  only  vot- 
ing for  it. 

The  committee  then  rose  and  reported  their  proceedings. 

It  was  ordered  that  the  resolutions  which  had  passed  in  committee 
of  the  whole,  should  now  be  read  in  Convention. 

The  first  resolution  was  read  and  amended,  by  adding  the  words 
"before  each  house." 

The  resolution  as  amended  was  passed  to  a  second  reading,  and 
assigned  for  Monday  next  at  ten  o'clock. 

The  second,  third  and  fourth  resolutions  were  read  and  passed  to 
a  second  reading,  and  also  assigned  to  Monday  at  ten  o'clock. 

The  resolutions  relative  to  poor  debtors  and  the  tenure  of  judicial 
officers  were  read  and  agreed  to. 

Harvard  University. — It  was  moved  that  the  report  of  the  select 
committee  relating  to  Harvard  College  be  now  taken  up.  After 
some  discussion,  Mr.  Quincy  moved  that  the  further  consideration 
of  the  report  should  be  indefinitely  postponed.  Some  discussion 
arose  on  this  motion. 

Mr.  Dearborn  of  Roxbury  opposed  the  indefinite  postponement. 
He  thought  an  investigation  of  the  subject  was  necessary,  and  sug- 
gested that  the  best  way  would  be  to  appoint  a  committee  to  meet 
a  committee  of  that  institution,  who  should  make  a  report. 

After  some  further  discussion,  Mr.  Webster  said  he  thought  the 
motion  was  not  in  order — and  called  for  a  reference  to  the  journal  to 
ascertain  the  situation  of  the  subject.  The  journal  being  read,  Mr. 
Q,uincy  withdrew  his  motion. 

On  motion  of  Mr.  Thorndike  the  committee  of  the  whole  was 
discharged  from  the  further  consideration  of  the  subject — 173  to  152. 

The  resolution  was  then  read,  "that  it  is  inexpedient  to  make  any 
alteration  in  that  part  of  the  constitution  relating  to  the  University." 

Mr.  Martin  spoke  against  the  report. 

Mr.  Sturgis  moved  an  indefinite  postponement. 
Mr.  Stowell  hoped  the  motion  would  prevail.  The  Convention 
had  been  in  session  almost  seven  weeks,  and  to  all  appearance  were 
no  nearer  the  end  of  discussion  than  when  they  began,  unless  the 
end  of  time  was  nearer.  Many  members  were  sick  and  many  had 
gone  home.  The  subject  was  fully  in  the  power  of  the  Legislature, 
and  he  thought  it  would  be  for  the  interest  of  the  public  that  it 
should  remain  there. 

Mr.  Richardson  opposed  the  postponement. 

Mr.  Hussey  would  be  satisfied  with  the  indefinite  postponement 
of  the  resolution,  but  if  it  was  to  be  acted  upon,  he  wished  it  might 
be  done  now. 


492  MASSACHUSETTS    CONVENTION. 

Mr.  Freeman  of  Sandwich  was  one  of  the  select  committee  and 
concurred  in  the  sentiment  of  the  report,  that  it  was  inexpedient  to 
make  any  alteration ;  but  he  was  opposed  to  an  indefinite  post- 
ponement ;  that  we  were  no  nearer  an  end  of  the  business  was  no 
reason  for  not  discussing  it — it  was  their  duty  to  remain  in  session 
if  it  took  a  year  and  a  day,  until  all  the  subjects  were  discussed. 
He  thought  if  the  affairs  of  the  University  were  properly  man- 
aged, and  the  board  of  overseers  properly  constituted,  the  subject 
ought  to  be  examined  into  and  properly  discussed. 

Mr.  Tillinghast  opposed  the  postponement.  He  said  that  there 
was  great  dissatisfaction  in  the  minds  of  many  people.  He  presumed 
if  the  subject  was  properly  discussed  and  fully  understood  they  would 
be  satisfied. 

Mr.  Cummings  and  Mr.  Dearborn  spoke  against  the  postpone- 
ment. 

Mr.  Webster  said  that  it  was  new  to  him  that  any  dissatisfaction 
or  any  doubts  had  existed  about  the  foundation  on  which  the  priv- 
ileges of  the  institution  rested.  It  was  said  the  College  was  rich. 
He  hoped  it  was.  If  there  was  a  question  about  the  foundation  it 
ought  to  be  thoroughly  considered.  It  was  not  beyond  the  power 
of  change,  like  other  establishments  of  the  kind.  He  was  not  op- 
posed to  the  substance  of  the  motion  of  the  gentleman  from  Rox- 
bury.  He  would  prefer  that  there  should  be  no  conference  proposed 
with  the  government  of  the  college.  A  committee  might  be  ap- 
pointed to  inquire  and  report.  The  government  of  the  college  would 
of  course  give  such  information  as  they  saw  fit.  If  there  was  any 
question  relative  to  the  charter  it  would  require  some  study.  He 
would  therefore  move,  if  the  motion  for  postponement  were  with- 
drawn, that  a  select  committee  be  appointed  to  inquire  into  the  con- 
stitutional rights  of  the  institution ;  and  also  to  give  an  account  full 
as  was  convenient  of  the  donations  to  it,  by  the  State  and  by  indivi- 
duals. 

Mr.  Sturgis  withdrew  the  motion  to  postpone. 

The  motion  was  made  that  a  select  committee  be  appointed  to 
inquire  into  and  report  upon  the  constitution,  rights  and  privileges 
of  the  corporation  of  Harvard  College,  and  to  report  also  on  the 
amount  of  the  donations  which  have  been  made  to  that  corporation 
by  the  State. 

Mr.  Richardson  doubted  whether  there  would  be  time  for  a  select 
committee  to  examine  the  subject. 

Mr.  Tillinghast  did  not  think  it  would  take  so  much  time  for  a 
select  committee  to  examine  it,  as  it  would  a  committee  of  the  whole. 

Mr.  S.  Porter  of  Hadley  thought  that  the  subject  did  not  belong 
to  the  Convention,  but  to  the  Legislature,  and  objected  to  the  ap- 
pointment of  a  committee. 

Mr.  Dana  objected  to  the  commitment.  He  presumed  that  no 
one  would  raise  a  question  whether  they  have  the  power  to  interfere 
in  the  affairs  of  the  College,  but  whether  it  is  expedient.  In  com- 
mittee of  the  whole  they  might  probably  arrive  at  all  they  wanted. 


MASSACHUSETTS    CONVENTION.  493 

He  presumed  the  chairman  of  the  select  committee  would  find  no 
difficulty  in  supporting  his  report,  and  that  he  would  satisfy  the  in- 
quiries that  would  be  made  in  relation  to  the  affairs  of  the  insti- 
tution. 

Mr.  Austin  of  Boston  was  surprised  at  the  opposition  to  the  com- 
mittee. It  could  do  no  harm  unless  to  produce  a  delay  of  a  few 
days,  but  might  do  much  good.  It  would  settle  facts  about  which 
there  was  much  doubt. 

Mr.  Baldwin  had  the  most  profound  veneration  for  all  the  officers 
of  this  institution,  and  for  the  institution  itself.  But  he  did  not 
think  it  stood  on  the  footing  it  ought. 

The  motion  was  agreed  to — 191  to  74. 

Mr.  Dearborn  was  first  named  by  the  President  on  the  committee, 
but  he  said  that  on  account  of  his  engagements  he  could  not  pay 
that  attention  which  would  be  proper  for  the  person  standing  first 
on  the  committee. 

The  committee  was  then  appointed  as  follows  :  Messrs.  Webster, 
Dearborn,  Wilde,  Tillinghast,  and  Dana.  Mr.  Dana  requested 
to  be  excused,  and  Mr.  Saltonstall  was  appointed  in  his  place. 

Mr.  Mack  of  Middlefield  had  leave  of  absence. 

It  was  ordered  that  when  the  House  adjourn  it  adjourn  to  Mon- 
day at  10  o'clock. 

Mr.  Gray  of  Boston  offered  the  following  resolution : 

Resolved,  That  the  constitution  be  so  amended, 

That  the  senate  shall  consist  of  thirty-one  members,  sixteen  of  which  to  be  a  quo- 
rum. 

That  the  Commonwealth  be  divided  into  about  forty  districts,  each  of  which  may 
send  two  members  to  the  house  of  representatives. 

That  the  governor  only  form  the  executive. 

That  the  council  be  abolished. 

That  no  other  amendments  to  the  constitution  are  necessary. 

Ordered  to  lie  on  the  table. 

Mr.  Lyman  of  Northampton  offered  the  following  resolutions  : 

1.  Resolved,  That  it  is  expedient  that  the  number  of  representatives  in  the  most 
numerous  branch  of  the  Legislature  should  be  reduced  ;  and  in  order  to  preserve  the 
principle  of  equality,  the  constitution  be  altered  and  amended,  so  as  to  provide  that 
the  number  of  representatives  shall  not  exceed  one  for  every  three  thousand  inhab- 
itants. 

2.  Resolved,  That  the  house  of  representatives  shall  never  consist  of  more  than 
one  hundred  and  sixty  nor  less  than  one  hundred  and  twenty  members,  and  that  they 
shall  be  paid  for  their  travel  and  attendance  out  of  the  public  treasury. 

3.  Resolved,  That  the  Commonwealth  be  divided  into  small  and  convenient  districts 
by  the  Legislature  thereof  for  the  choice  of  representatives — that  no  town  shall  be 
divided  for  this  purpose — that  no  district  shall  contain  more  than  fifteen  thousand  in- 
bitants  unless  a  town  shall  contain  more  than  that  number,  nor  less  than  six  thousand  in- 
habitants, except  Duke'sCounty,  which  district  shall  remain  permanent  and  unalterable. 

4.  Resolved,  That  the  several  towns  which  compose  any  district  shall  hold  their 
meetings  for  the  choice  of  representatives  in  their  respective  towns,  and  that  the 
chairman  or  senior  member  of  each  board  of  selectmen  shall  meet  in  the  most  con- 
venient town  in  each  district,  to  be  designated  by  the  Legislature,  on  the  day  succeed- 
ing such  election,  and  compare  the  votes  of  the  several  towns  duly  certified  by  the 
respective  town  clerks,  and  shall  give  their  certificates  of  the  choice  to  the  persons 
havinsj  the  greatest  number  of  votes  therein. 

5.  Resolved,  That  the  Legislature  shall,  according  to  a  just  and  equal  ratio,  appor- 


494  MASSACHUSETTS     CONVENTION. 

tion  among  the  several  districts  the  number  of  representatives  to  which  each  district 
shall  be  entitled,  at  their  first  session  after  the  amendments  to  this  constitution  shall 
have  been  adopted  by  the  people,  and  at  their  first  session  after  every  subsequent 
enumeration  of"  the  inhabitants  by  the  government  of  the  United  States  or  of  this 
Commonwealth. 

Ordered  to  lie  on  the  table. 
The  House  adjourned. 


Monday,  January   1,  1821. 

The  House  met  at  10  o'clock  and  the  journal  of  Saturday  was 
read. 

Mr.  Varnum  of  Dracut  moved  that  the  committee  for  reducing 
amendments  into  the  form  in  which  it  shall  be  proper  to  submit 
them  to  the  people,  be  instructed  to  report  from  time  to  time  as  they 
shall  mature  the  business  before  them. 

Mr.  Varnum  said  his  object  was  to  have  the  report  acted  upon 
from  time  to  time,  that  it  may  be  committed  to  an  engrossing  com- 
mittee, in  order  that  the  Convention  may  not.  be  obliged  to  wait 
three  or  four  days  after  all  the  principles  of  the  amendments  shall 
have  been  adopted. 

The  motion  was  agreed  to.  Leave  of  absence  was  granted  to 
Messrs.  Crawford  of  Oakham,  Woodbridge  of  Stockbridge,  and 
Thomas  of  Plymouth. 

Mr.  Greenleaf  of  Quincy  was  put  on  the  committee  of  accounts 
in  the  room  of  Mr.  Valentine  of  Hopkinton,  absent  on  leave.        , 

Mr.  Dana  of  Groton,  chairman  of  a  select  committee  to  whom  the 
subject  had  been  referred,  reported  that  it  is  proper  to  alter  the  con- 
stitution so  as  to  provide  that  every  male  citizen  of  twenty-one 
years  of  age  and  upwards,  except  paupers  who  have  resided  in  any 
town  or  district  of  this  Commonwealth  for  the  space  of  six  calendar 
months  next  preceding  any  election,  who  shall  by  himself,  parent, 
master,  or  guardian  have  paid  any  public  tax,  which  may  have  been 
assessed  within  the  two  years  next  preceding  such  election,  shall 
have  a  right  to  vote  in  the  election  of  all  civil  officers. 

Mr.  Sullivan  of  Boston  said  he  had  a  proposition  to  offer  respect- 
ing the  organization  of  the  house  of  representatives.  Three  objects 
were  to  be  kept  in  view  in  forming  a  plan  in  relation  to  this  subject 

that  the  number  of  the  representatives  be  reduced — that  the  towns 

retain  their  corporate  rights — and  that  the  members  of  the  house  be 
paid  from  the  public  treasury.  It  was  impossible  to  reconcile  these 
three  things  entirely ;  he  had  however  endeavored  to  approximate 
to  a  reconciliation  of 'them.  He  therefore  moved  two  resolutions  ; 
the  first  was  for  providing  that  every  town  containing  eight  hundred 
inhabitants  should  have  a  right  to  send  one  representative,  2,400 
two  representatives,  making  1,600  the  mean  increasing  ratio — that 
no  new  town  should  be  incorporated  with  the  right  of  sending  a 
representative  unless  it  contained  1,600  inhabitants,  and  that  no 
town,  now  having  eight  hundred,  should  lose  its  right — if  the  num- 


MASSACHUSETTS     CONVENTION.  495 

ber  of  its  inhabitants  should  become  less  than  eight  hundred.  The 
second  resolution  was  for  providing  that  half  the  expense  for  travel 
and  attendance  of  the  members  should  be  defrayed  by  the  State 
treasury  and  half  by  the  respective  towns,  according  to  the  number 
from  each  town.  Mr.  S.  thought  the  consequence  of  these  regula- 
tions would  be  that  the  number  of  representatives  would  not  usually 
exceed  250. 

Senate  and  House  of  Representatives. — The  Convention  pro- 
ceeded to  the  consideration  of  the  resolutions  of  the  select  committee 
on  the  senate  and  house  of  representatives,  as  reported  by  a  com- 
mittee of  the  whole. 

Mr.  Dearborn  of  Roxbury  offered  some  resolutions  which  he 
proposed  to  substitute  for  the  first,  second,  third,  fourth,  eighth, 
ninth,  tenth,  eleventh,  twelfth,  thirteenth  and  fourteenth  of  the 
select  committee.  Mr.  D's  resolutions  differed  from  those  he  offered 
at  a  former  day  and  which  were  discussed  in  committee  of  the 
whole,  by  proposing  that  the  senators  should  be  elected  for  two 
years,  half  to  be  elected  in  each  year.  Mr.  D.  said  he  had  thought  of 
taking  thirty-six  for  the  number  of  the  senate,  as  that  had  been  re- 
ported by  the  select  committee,  and  one  hundred  and  forty-four  for  the 
house,  making  the  house  four  times  as  large  as  the  senate.  He  was 
not  tenacious  in  respect  to  the  numbers. 

Mr.  Apthorp  of  Boston  moved  that  the  resolutions  lie  on  the 
table  until  the  Convention  had  acted  upon  the  resolutions  of  the 
select  committee. 

Mr.  Prescott  said  the  principles  of  these  resolutions,  except  as  to 
the  term  of  office  of  the  senators,  had  been  discussed  four  days  in 
committee  of  the  whole,  and  he  thought  it  was  better  to  take  the 
question  upon  them  at  once. 

Mr.  Story  said  it  was  immaterial  whether  they  were  taken  up 
first  or  not.  He  considered  the  proposition  of  the  gentleman  from 
Northampton  (Mr.  Lyman)  as  the  only  just  and  correct  one  for  form- 
ing the  house  of  representatives,  but  he  had  voted  hitherto  on  the 
ground  that  it  was  impossible  to  carry  it.  If  it  should  be  adopted, 
he  should  have  no  difficulty  in  putting  the  senate  on  the  basis  of 
population,  making  the  time  of  holding  their  office  longer  than  that 
of  the  representatives.  But  if  the  report  of  the  select  committee  is 
to  be  adopted,  concerning  the  representatives,  he  thought  there  was 
no  other  check  than  taking  valuation  for  the  basis  of  the  senate. 

The  question  for  the  resolutions  lying  on  the  table  was  negatived. 

A  motion  to  commit  them  to  a  committee  of  the  whole,  was  also 
negatived,  after  some  discussion — 100  to  183. 

A  motion  being  made  respecting  the  further  consideration  of  them, 

Mr.  Webster  observed  that  as  the  resolutions  contained  a  new 
proposition  for  altering  the  constitution,  the  house  having  refused  to 
commit  them,  by  a  rule  of  the  Convention  it  could  no  longer  act 
upon  them. 

The  first  resolution  of  the  select  committee  which  fixes  the  num- 
ber of  the  senate  at  thirty-six,  was  then  taken  up. 


496  MASSACHUSETTS    CONVENTION. 

Mr.  Dana  moved  to  strike  out  "thirty -six,"  and  insert  "forty." 
He  was  in  favor  of  an  increase  of  the  number,  because  it  would 
better  balance  the  great  number  of  the  other  house — because  it 
would  enable  them  to  legislate  with  greater  ease  ;  and  because,  as  a 
constituent  part  of  the  board  of  overseers  of  Harvard  College,  it 
would  form  a  better  check  upon  the  executive  government  of  the 
college  and  permanent  members  of  the  board.  The  board  of  over- 
seers is  composed  of  fifteen  clergymen,  and  fifteen  laymen,  who  are 
elected,  of  the  governor,  lieutenant  governor,  members  of  the  coun- 
cil and  senators,  making  in  all,  if  the  council  is  fixed  at  seven  and 
the  senate  at  forty — 79.  He  thought  that  there  ought  to  be  a  pre- 
ponderating majority  in  this  board  on  the  part  of  the  members  who 
belong  to  the  government  of  the  Commonwealth. 

Mr.  Gray  of  Boston  said  that  although  he  had  a  great  respect  for 
the  gentlemen  who  composed  the  select  committee,  yet  as  they  were 
not  agreed  in  the  principles  of  their  report,  and  as  gentlemen  of 
great  talents  and  experience  had  expressed  their  doubt  of  the  expe- 
diency of  adopting  the  report,  and  as  it  did  not  agree  with  his  own 
views  in  relation  to  the  subject — he  felt  it  his  duty  to  vote  against 
it.  We  had  formerly  forty  senators  ;  the  separation  of  Maine  from 
us  had  taken  off  more  than  half  the  territory,  and  almost  half  the 
people,  and  the  important  part  of  the  legislative  business  of  the 
Commonwealth  was  transferred  to  the  general  government.  It  was 
formerly  provided  that  the  council  should  be  chosen  from  the  senate, 
reducing  the  number  to  thirty-one.  He  was  therefore  opposed  to 
increasing  the  senate  above  that  number,  but  should  be  in  favor  of 
reducing  it  to  twenty-eight  or  even  to  fourteen — one  from  each 
county.  He  saw  no  reason  why  fourteen  were  not  competent  to 
transact  the  business  and  also  to  form  a  check  upon  the  other  house. 
Though  he  had  proposed  thirty-one  in  the  resolution  which  he 
offered  on  Saturday,  he  thought  on  mature  reflection  that  twenty- 
eight  would  be  a  more  suitable  number. 

Mr.  Qjjincy  was  in  favor  of  the  amendment,  because  it  tended  to 
preserve  the  constitution  where  it  is. 

Mr.  Austin  of  Boston  said  that  he  should  vote  in  favor  of  the 
amendment,  in  the  hope  that  the  council  would  be  chosen  from  the 
senate  as  heretofore. 

Mr.  Martin  was  opposed  to  the  amendment.  He  wished  to  have 
the  number  reduced  instead  of  increased.  The  people  had  expected 
that  the  expenses  of  the  State  would  be  reduced — but  he  should 
like  to  have  gentlemen  show  one  single  thing  that  had  been  done 
to  diminish  the  expenses  of  the  people. 

Mr.  Prescott  said  that  some  gentlemen  were  in  favor  of  increas- 
ing, and  others  of  diminishing  the  number.  The  select  committee 
had  adopted  a  mean  number  between  what  it  is  by  the  constitution 
when  the  counsellors  decline,  and  what  it  is  when  they  accept. 
They  had  agreed  on  thirty-six,  in  the  presumption  that  the  council 
would  not  be  taken  from  the  senate.  But,  if  it  should  be  deter- 
mined to  take  them  from  the  senate,  the  number  would  be  but  two 


MASSACHUSETTS     CONVENTION.  497 

less  than  under  the  present  constitution.  If  it  should  be  left  op- 
tional with  those  elected  counsellors  whether  to  accept  or  not,  they 
would  probably  resign  when  the  public  business  required  it,  and 
when  they  saw  fit  to  vacate  their  seats  in  the  senate,  twenty-nine 
would  be  competent  to  perform  the  duties.  He  did  not  think  that 
fourteen,  the  number  proposed  by  his  colleague,  were  enough.  He 
hoped  the  number  would  be  kept  at  thirty-six,  as  proposed  by  the 
committee.  It  had  been  said  not  to  be  so  safe  as  constituting  a 
part  of  the  board  of  overseers  of  the  College.  He  did  not  see  the 
force  of  the  argument.  The  governor,  lieutenant  governor,  coun- 
sellors and  senators  would  make  forty-five,  being  one  third  more 
than  the  permanent  members  of  the  board.  If  the  number  was  in- 
creased to  forty,  the  restriction  of  each  district  to  six  would  operate 
unjustly.  He  proceeded  to  state  the  operation  of  the  restriction  at 
the  present  moment  on  the  counties  of  Suffolk  and  Essex. 

Mr.  Blake  hoped  the  amendment  would  prevail,  because  he  had 
reason  to  believe  that  they  should  fall  back  to  the  old  principle  of 
choosing  counsellors,  and  twenty-nine  he  thought  would  be  too 
small  a  number  to  legislate  conveniently. 

Mr.  Story  was  decidedly  opposed  to  the  amendment.  It  appeared 
to  be  the  necessary  and  natural  result  of  it  to  abandon  the  principle  of 
valuation  and  population  altogether,  and  to  adopt  something  interme- 
diate for  the  benefit  of  one  or  two  districts.  If  the  amendment  was 
agreed  to,  the  principle  of  apportionment,  nominally  adopted,  would 
not  be  adopted  in  truth.  He  proceeded  to  show  the  inequality 
which  would  result  from  the  limitation  of  the  number  from  any  one 
district,  if  the  amendment  were  adopted,  and  replied  to  the  argument 
of  the  gentleman  from  Groton,  founded  on  their  duties  as  members 
of  the  board  of  overseers. 

Mr.  Dana  replied  to  the  argument  of  the  gentleman  from  Boston, 
(Mr.  Prescott)  and  contended  that  the  limitation  of  the  principle 
would  be  just  in  its  operation  on  the  large  districts.  In  relation  to 
the  board  of  overseers,  he  said  it  was  well  known  that  distant  mem- 
bers did  not  constantly  attend  the  meetings  of  the  board. 

The  question  was  taken  on  the  amendment  and  lost — 90  to  206. 
The  question  recurring  on  the  resolution, 

Mr.  Lincoln  of  Worcester  moved  to  amend  by  adding  that  the 
senators  should  be  chosen  by  the  inhabitants  of  the  districts  into 
which  the  Commonwealth  should  be  divided  by  the  General  Court, 
and  that  the  General  Court  in  assigning  the  number  of  senators, 
should  govern  themselves  by  the  proportion  of  the  population  in 
each  district  according  to  the  last  preceding  census.  Mr.  L.  said  he 
did  not  mean  to  go  into  the  argument  in  support  of  his  amendment. 
His  object  was  to  change  the  basis  of  the  senate  from  valuation  to 
population.  It  was  his  duty  to  resist  the  principle  adopted  by  the 
select  committee.  It  was  in  opposition  to  a  fundamental  rule  for 
the  organization  of  a  representative  body,  It  produced  great  inequal- 
ity, not  only  as  to  different  parts  of  the  Commonwealth,  but  also  as 
to  individuals  living  in  those  parts.  He  presumed  it  would  not  be 
63 


498  MASSACHUSETTS    CONVENTION. 

contended  that  the  same  individual  at  different  times  should  have 
different  power  merely  from  changing  his  residence  ;  but  it  was  the 
case  that  a  man  living  in  Boston  has  a  greater  influence  in  the  gov- 
ernment, from  the  accumulation  of  property  belonging  to  others, 
than  he  would  have  in  another  part  of  the  Commonwealth,  although 
he  has  as  good  discretion  in  one  part  as  in  another.  Suffolk  by 
valuation  would  be  entitled  to  eight  senators,  which  is  arbitrarily 
restricted  to  six.  Essex,  containing  a  population  of  upwards  of 
70,000,  was  entitled  to  no  more  than  Boston.  Middlesex  containing 
52,000  was  entitled  to  but  half  the  number,  and  was  independent 
of  the  restriction.  Hampshire,  Hampden  and  Franklin  united,  were 
entitled  to  only  four,  though  containing  76,000  inhabitants.  He 
said  this  was  a  violation  of  the  principle  on  which  the  whole  gov- 
ernment is  based. 

Mr.  Nichols  of  South  Reading  said  this  was  an  important  sub- 
ject, and  he  hoped  the  amendment  of  the  gentleman  from  Worcester 
would  be  adopted.     He   moved  that  when  the  question  was  taken 
it  should  be  by  yeas  and  nays. 
Agreed  to. 

Mr.  Lawrence  of  Groton  said  the  gentleman  from  Worcester 
seemed  to  have  forgotten  that  this  first  resolution  was  to  be  taken 
in  connection  with  the  resolutions  respecting  the  house  of  represen- 
tatives, in  which  concessions  are  made  to  give  an  equivalent  for  the 
excess  of  power,  of  some  districts,  in  the  senate.  The  whole  system 
ought  to  be  taken  together. 

Mr.  Sibley  of  Sutton  said  he  had  always  been  opposed  to  the 
basis  of  valuation.  Gentlemen  he  thought  read  the  constitution 
wrong.  The  constitution  said  according  to  the  taxes  paid.  Public 
taxes  in  money  were  not  the  only  kind  of  taxes.  If  the  value  of 
the  time  and  money  spent  by  the  citizens  of  some  of  the  populous 
counties  in  equipping  themselves  for  military  duty  and  in  performing 
it,  were  considered,  it  would  appear  that  these  counties  paid  as  great 
a  tax  as  Suffolk. 

Mr.  Story  moved  to  amend  the  amendment  by  adding  that  the 
house  of  representatives  should  be  founded  on  the  same  basis  of 
population,  and  then  be  divided  into  convenient  districts,  so  that 
one  representative  should  be  allowed  for  3000  inhabitants,  and  no 
town  to  be  divided  for  this  purpose. 

Mr.  Varnum  thought  the  propositions  respecting  the  senate  and 
house  of  representatives  ought  not  to  be  blended. 

Mr.  Blake  said  if  the  two  propositions  could  be  united  he  hoped 
they  would.  It  would  put  to  the  test  the  plan  of  the  gentleman 
from  Worcester.  On  the  principle  of  population  advanced  by  him, 
the  town  of  Hull  would  be  entitled  to  one  representative,  and  the 
town  of  Boston  to  4000. 

Mr.  Starkweather  of  Worthington  said  he  was  sorry  the  amend- 
ment was  proposed  at  this  time,  because  it  embarrassed  the  subject, 
which  before  was  distinctly  understood.  He  thought  the  principle 
of  the  gentleman  from  Worcester  was  unsound,  and  that  of  valuation 


MASSACHUSETTS    CONVENTION.  499 

reported  by  the  committee  correct,  and  he  hoped  such  would  be  the 
opinion  of  the  Convention. 

Mr.  Story  said  there  was  no  question  as  to  his  amendment  being 
in  order,  and  it  was  the  only  fair  way  of  testing  the  principle  of  the 
gentleman  from  Worcester.  If  population  was  the  only  just  basis 
of  the  senate,  as  the  gentleman  contended,  it  was  of  the  house  also. 
If  gentlemen  were  willing  to  take  it  as  the  basis  of  both  branches 
he  would  agree  with  them,  making  the  term  of  service  of  the  sen- 
ators longer.  If  the  gentleman  from  Worcester  intended  to  follow 
up  his  principle,  he  ought  to  vote  for  this  amendment  to  his  propo- 
sition. Gentlemen  who  wished  to  have  the  senate  based  on  popula- 
tion seemed  to  want  to  separate  the  consideration  of  the  subjects  of 
the  senate  and  the  house.  They  ought  to  be  considered  together. 
It  was  a  double  injustice  to  take  in  the  house  of  representatives  all 
advantage  of  the  abandonment  of  the  principle  of  population,  and  in 
the  senate  of  the  adhering  to  it. 

The  question  on  Mr.  Story's  amendment  to  the  amendment  was 
taken  and  negatived — 146  to  170. 

Mr.  Leland  of  Roxbury  said  that  in  the  examination  of  this  sub- 
ject he  was  inclined  to  the  opinion  that  founding  the  senate  on  pop- 
ulation was  theoretically  correct.  But  if  there  was  any  surrender 
of  the  principle,  property  ought  to  be  called  in  as  an  equivalent. 
But  we  should  also  consider  the  extent  of  the  power  to  be  delegated. 
Checks  and  balances,  it  was  agreed  on  all  hands,  were  necessary, 
and  if  they  could  not  be  obtained  otherwise,  the  principle  of  appor- 
tionment should  be  modified.  One  of  the  powers  of  the  Legislature 
was  the  right  of  taxing,  directly  anil  indirectly,  without  limitation. 
It  may  tax  banks,  auctioneers,  merchants,  manufacturers,  &c,  in 
such  a  manner,  that  it  may  bear  almost  exclusively  on  one  part  of 
the  country.  In  respect  to  the  other  powers  of  the  General  Court  he 
could  see  no  difference  whether  the  senate  were  founded  on  popu- 
lation or  valuation,  but  in  respect  to  taxes,  he  would  ask  gentlemen 
whether  the  members  of  the  Legislature  were  interested  in  propor- 
tion to  the  population  of  the  districts  they  represented.  Mr.  L. 
moved  to  amend  the  amendment  of  Mr.  Lincoln,  by  adding  that  all 
moneys  for  the  use  of  the  Commonwealth  shall  be  raised  by  an  equal 
assessment  upon  the  property  and  polls  of  the  inhabitants  thereof. 

Mr.  Story  hoped  this  amendment  would  be  adopted.  It  would 
enable  them  to  provide  that  the  taxes  shall  be  raised  where  a  cor- 
responding influence  is  given. 

Mr.  Leland  said  his  object  was  to  have  only  one  mode  of  taxa- 
tion ;  that  the  Legislature  should  not  raise  money  by  indirect  taxes. 

The  question  was  taken  upon  Mr.  Leland' s  motion  and  decided 
in  the  negative. 

Mr.  J.  Phillips  of  Boston  said  he  should  make  a  few  remarks, 
but  with  great  plainness.  He  asked  gentlemen  how  they  could 
justify  it  to  their  conscience  to  reject  the  amendment  of  the  gentle- 
man from  Salem,  and  this  of  the  gentleman  from  Roxbury,  and  then 
vote  in  favor  of  the  amendment  of  the  gentleman  from  Worcester. 


500  MASSACHUSETTS    CONVENTION. 

to  throw  the  merchants  of  the  seaboard  into  the  power  of  those 
who  may  have  an  interest  to  lay  all  the  burden  of  taxes  upon  them. 

Mr.  Abbot  of  Westford  moved  to  reconsider  the  vote  by  which 
the  amendment  offered  by  Mr.  Story  was  rejected. 

Mr.  Story  moved  that  when  the  question  was  taken  on  the  mo- 
tion to  reconsider  the  vote  on  the  amendment  offered  by  him,  it 
should  be  by  yeas  and  nays — agreed  to. 

The  question  on  the  motion  to  reconsider,  was  decided  in  the 
affirmative — yeas  218,  nays  148. 

Mr.  Lincoln  opposed  the  amendment,  because  to  admit  it,  would 
deprive  the  small  towns  of  their  corporate  rights.  In  becoming  in- 
corporated towns,  they  received  certain  privileges,  and  came  under 
the  obligation  of  performing  certain  duties.  These  rights  they  had 
long  enjoyed,  and  they  would  not  readily  relinquish  them.  The 
objection  to  continuing  them  in  the  enjoyment  of  these  rights  was 
that  the  house  would  be  too  numerous.  This  was  an  evil  which 
could  not  be  avoided,  and  it  was  attended  with  advantages.  It 
formed  a  channel  of  communication  from  the  government  to  the 
people,  and  from  the  people  to  the  government,  more  perfect  than 
if  the  representation  were  smaller.  He  proceeded  to  answer  the 
objection  that  the  mode  was  unequal. 

Mr.  Qjjincy  was  in  favor  of  the  amendment  because  he  wished  to 
put  two  propositions  together,  which  were  in  their  nature  insepar- 
able. 

Mr.  Blake  was  in  favor  of  the  amendment,  and  answered  the 
argument  of  Mr.  Lincoln  relating  to  the  corporate  right  of  towns. 

Mr.  Dana  inquired  whether  if  the  amendment  to  the  amendment 
were  adopted,  the  amendment  offered  by  Mr.  Lincoln  would  be 
capable  of  division. 

Mr.  Story  said  that  the  proposition  to  amend,  modified  by  the 
amendment  which  he  had  proposed,  would  present  but  a  single 
question.  A  great  part  of  the  difficulty  which  had  arisen  here  had 
proceeded  from  keeping  separate  propositions  which,  in  their  nature, 
were  united.  The  gentleman  from  Worcester  ought  to  bring  out 
his  whole  plan  and  not  argue  in  favor  of  part  of  it,  on  a  principle 
which  would  be  opposed  to  the  other  part  of  it.  He  had  supported 
his  amendment  for  fixing  the  apportionment  of  representation  in  the 
senate  on  the  basis  of  population,  upon  the  ground  that  it  was  a 
fundamental  principle  in  relation  to  government.  If  it  was  a  funda- 
mental principle  in  relation  to  one  house  it  was  in  relation  to  the 
other.  If  the  gentleman  insisted  upon  this  principle  in  relation  to 
the  senate,  he  should  follow  it  up  in  relation  to  the  house,  and  not 
have  the  argument  against  the  present  organization  of  the  senate, 
that  population  is  the  only  just  basis  of  representation,  and  in  the 
organization  of  the  house  that  the  ancient  right  of  corporations  is  to 
outweigh  every  other  principle.  He  considered  the  two  propositions 
as  inseparable. 

The  question  was  taken  on  the  adoption  of  the  amendment  to  the 
amendment  and  agreed  to — 188  to  138. 


MASSACHUSETTS    CONVENTION.  501 

The  question  being  stated  on  the  amendment  as  amended,  a  di- 
vision was  called  for,  for  the  purpose  of  taking  the  sense  of  the 
House  on  the  original  amendment. 

The  division  was  declared  by  the  president  to  be  not  in  order; 
from  this  decision  there  was  an  appeal. 

Mr.  Dana  and  Mr.  Parker  of  Charlestown  spoke  against  the 
decision,  and  Mr.  Prescott  and  Mr.  Webster  in  favor  of  it. 

Mr.  Lincoln  said  he  considered  the  decision  correct,  and  that  he 
was  prepared  to  vote  against  his  own  proposition. 

The  decision  was  confirmed  by  a  large  majority. 

The  question  was  then  taken  on  the  amendment  as  amended, 
and  negatived — 31  to  301. 

The  question  was  then  taken  on  passing  the  first  resolution  to  a 
second  reading,  and  decided  in  the  affirmative — 210  to  81. 

The  House  adjourned. 


Tuesday,  January  2. 

The  House  met  at  half  past  9  o'clock,  and  attended  prayers  of- 
fered by  the  Reverend  Mr.  Jenks.  After  which  the  journal  of 
yesterday  was  read. 

Mr.  Prescott  of  Boston  offered  the  following  resolution : 

Resolved,  That  it  is  expedient  so  to  alter  and  amend  the  constitution,  as  to  provide 
that  after  the  year  1830  the  n'imber  of  inhabitants  which  shall  entitle  a  town  to  elect 
a  representative,  and  the  mean  increasing  number  which  shall  entitle  a  town  to  elect 
more  than  one  representative,  shall  be  proportionally  increased,  so  as  that  the  whole 
number  of  representatives  shall  not  exceed  275,  and  that  every  tenth  year  afterwards, 
the  said  number  of  inhabitants  shall  be  so  increased  as  that  the  whole  number  of 
representatives  shall  never  exceed  275;  provided,  that  no  town,  which,  according-  to 
the  census  now  taking  under  the  authority  of  the  United  States,  shall  be  entitled  to 
elect  a  representative  every  year,  shall  ever  be  deprived  of  that  privilege  unless  the 
number  of  inhabitants  therein  shall  be  reduced  to  less  than  1200;  in  which  case, 
such  town  shall  be  classed  and  entitled  to  send  a  representative  every  other  year, 
and  no  town  or  town  and  district,  which,  according  to  said  census,  shall  be  entitled 
to  send  a  representative  every  other  year,  shall  ever  be  deprived  of  that  privilege. 

Ordered  to  lie  on  the  table. 

The  House  proceeded  to  the  consideration  of  the  resolutions  of 
the  select  committee  on  the  senate  and  house  of  representatives,  as 
reported  by  a  committee  of  the  whole. 

The  question  was  upon  the  second  resolution,  which  proposes 
that  the  number  of  senatorial  districts  shall  never  be  less  than  ten. 

Mr.  Lincoln  of  Worcester  said  the  sense  of  the  House  had  not 
been  taken  distinctly  on  the  proposition  he  offered  yesterday  as  an 
amendment  to  the  first  resolution.  He  had  hoped  that  the  members 
who  were  pleased  with  it  might  have  the  privilege  of  recording 
their  names  in  favor  of  it ;  but  it  was  embarrassed  by  another 
amendment,  so  that  the  object  of  the  motion  to  take  the  question 
by  yeas  and  nays  was  defeated.  He  hoped  for  the  indulgence  of 
the  House,  if  he  renewed  his  motion,  with  an  additional  clause  as 
an  amendment  to  the  present  resolution,  for  the   purpose  of  taking 


502  MASSACHUSETTS    CONVENTION. 

the  yeas  and  nays  upon  it.  Mr.  L.  then  moved  to  amend  the  reso- 
lution by  adding  that  the  number  of  senators  to  be  elected  in  the 
districts  respectively,  shall  be  in  proportion  to  the  number  of  inhabi- 
tants therein  ;  and  no  county  shall  be  divided  into  more  than  two 
districts,  nor  any  two  counties  united,  except  Dukes  County  and 
Nantucket.  Mr.  L.  said  the  object  of  part  of  the  amendment  was 
to  enable  the  Legislature  to  divide  the  counties  of  Essex  and  Wor- 
cester. In  regard  to  the  other  part,  those  who  held  that  valuation 
was  the  proper  basis  for  the  senate,  would  act  consistently  in  voting 
against  the  amendment ;  but  those  who  admit  that  population  is  the 
proper  basis,  if  extended  to  both  branches,  would  yield  the  point  if 
they  did  not  vote  in  the  affirmative. 

Mr.  Dwight  of  Springfield  rose  on  a  question  of  order.  He  said 
this  subject  had  been  fully  discussed  and  decided  yesterday. 

Mr.  Webster  said  he  could  see  no  end  of  the  discussion,  accord- 
ing to  the  present  course  of  proceeding.  The  rule  of  the  Convention 
required  that  every  proposition  for  an  amendment  to  the  constitution 
should  be  discussed  in  committee  of  the  whole,  before  it  was  acted 
upon  in  convention.  He  did  not  recollect  that  this  amendment  had 
been  discussed  in  committee,  and  he  asked  for  the  decision  of  the 
chair  whether  it  was  in  order. 

The  President  said  that  the  same  objection  occurred  to  him 
yesterday  in  relation  to  the  proposition  made  by  the  gentleman 
from  Roxbury,  (Mr.  Leland;)  as  that  was  acted  upon  for  the  sake 
of  uniformity,  he  should  decide  the  present  amendment  to  be  in 

order. 

Mr.  Lincoln  proceeded.  He  said  there  was  no  connection  between 
this  proposition  and  the  one  offered  yesterday  by  the  gentleman 
from  Salem,  (Mr.  Story.)  That  gentleman  might  vote  in  favor  of 
this  and  then,  when  the  subject  of  the  house  of  representatives 
came  before  the  Convention,  he  might  move  to  put  the  representa- 
tion in  the  house  upon  the  same  basis.  To  connect  these  two  prop- 
ositions was  creating  confusion.  It  forcibly  reminded  him  of  what 
had  been  done  in  Congress  when  two  things  were  connected  that 
had  no  dependence  upon  each  other.  He  alluded  to  the  bill  for  the 
admission  of  Maine  into  the  Union  in  connection  with  the  admission 
of  Missouri.  That  was  a  struggle  for  checks  and  balances  for  bal- 
ancing the  power  between  different  parts  of  the  Union.  Here,  too, 
was  a  struggle  between  population  and  wealth.  He  thought  it 
better  that  wealth  should  be  in  the  custody  of  the  people,  than  the 
people  in  the  custody  of  wealth.  If  population  was  proper  for  the 
basis  of  both  branches,  it  was  proper  for  one,  and  many  gentlemen 
who  would  insist  upon  corporate  rights  for  the  basis  of  the  house, 
if  valuation  was  taken  for  the  senate,  would  yield  if  population 
should  be  substituted  for  valuation. 

Mr.  Story  said  this  was  the  same  proposition  that  was  introduced 
yesterday,  and  to  which  he  moved  his  amendment.  The  gentleman's 
argument  was  that  they  were  independent  propositions,  and  it  was 
his  (Mr.  S.)  argument,  that  they  were  necessarily  connected,  and  it 


MASSACHUSETTS    CONVENTION.  503 

had  been  determined  by  the  House  that  they  should  be  connected. 
Nothing  was  more  fair  than  this,  and  he  asked,  would  gentlemen  be 
willing  to  be  led  blindfolded  into  the  adoption  of  the  gentleman's 
proposition  respecting  the  senate  without  knowing  what  was  to  fol- 
low with  regard  to  the  other  house.  He  was  sorry  the  gentleman 
had  thought  proper  to  renew  his  motion,  but  he  pledged  himself 
that  as  often  as  the  gentleman  should  renew  it,  he  (Mr.  S.)  should 
move  to  amend  by  adding  the  amendment  he  offered  yesterday  :  and 
this  from  necessity.  Mr.  S.  concluded  by  moving  to  amend  the 
amendment  by  adding  that  the  representatives  should  be  chosen  in 
convenient  districts  according  to  population. 

Mr.  Q,uincy  rose  to  a  question  of  order.  He  said  that  both  of 
these  propositions,  in  principle,  had  already  been  acted  upon.  There 
was  too  much  refinement  between  the  gentleman  in  the  air  (Mr.  L. 
in  the  gallery)  and  the  gentleman  on  the  ground,  (Mr.  S.  on  the 
floor.)  Between  them  both,  the  House  would  be  ground  between 
the  upper  and  the  nether  millstone. 

Mr.  Webster  said  he  must  renew  his  objection  on  the  question  of 
order,  on  account  of  the  rule  of  the  Convention. 

The  President  said  he  should  adhere  to  his  decision  and  wished 
the  gentleman  would  appeal. 

Mr.  Webster  appealed. 

Some  debate  ensued,  in  which  Messrs.  Lincoln,  Story,  Morton 
and  Quincy  took  part. 

The  question  whether  the  decision  of  the  chair  was  correct,  was 
determined  in  the  negative — 126  to  150. 

The  question  was  taken  on  the  resolution  passing  to  a  second 
reading,  and  was  decided  in  the  affirmative. 

Mr.  Dana  moved  to  postpone  indefinitely  all  the  resolutions  re- 
lating to  the  senate.     Negatived. 

The  third  resolution  proposing  that  no  county  shall  be  divided 
for  the  purpose  of  forming  a  district  for  the  election  of  senators,  was 
read  and  passed  to  a  second  reading  without  debate. 

The  fourth  resolution  was  read ;  which  provides  that  the  several 
counties  shall  be  districts  for  the  choice  of  senators  until  the  General 
Court  shall  alter  the  same — excepting  that  the  counties  of  Hampshire, 
Hampden  and  Franklin,  shall  form  one  district  for  that  purpose — 
and  also,  that  the  counties  of  Barnstable,  Nantucket  and  Dukes 
County  shall  together  form  a  district  for  the  purpose,  and  that  they 
shall  be  entitled  to  the  following  number  of  senators,  viz.  : — Suffolk, 
six  ;  Essex,  six ;  Middlesex,  four ;  Worcester,  five  ;  Hampshire, 
Hampden  and  Franklin,  four ;  Berkshire,  two ;  Plymouth,  two  ; 
Bristol,  two  ;  Norfolk,  three ;  Barnstable,  Nantucket  and  Dukes 
County,  two. 

Mr.  Lincoln  moved  to  amend  the  resolution  by  reducing  the  pro- 
portion of  Suffolk  from  six  to  five,  and  he  moved  also  that  the  ques- 
tion on  the  amendment  should  be  taken  by  yeas  and  nays. 

The  motion  for  taking  by  yeas  and  nays  was  negatived,  54  out 
of  274  voting  in  favor  of  it. 


504  MASSACHUSETTS    CONVENTION. 

Mr.  Prescott  said  it  had  been  determined  that  the  senate  shall 
consist  of  thirty-six  members — that  valuation  shall  form  the  basis — 
and  that  no  district  shall  have  more  than  six.  Suffolk  paid  one  fifth 
of  the  taxes,  which  would  entitle  it  to  seven,  besides  the  tax  on 
banks :  it  was  understood  also,  that  these  resolutions  formed  an  en- 
tire system.  Under  these  circumstances  he  trusted  the  amendment 
would  not  be  adopted. 

The  amendment  was  negatived — 130  to  180. 

The  resolution  then  passed  to  a  second  reading. 

The  fifth  resolution,  proposing  to  substitute  "the  first  Wednesday 
in  January  "for  "  the  last  Wednesday  in  May,"  wherever  it  occurs 
in  the  second  section  of  the  first  chapter,  was  read  and  passed  to  a 
seccni  reading  without  debate. 

The  sixth  resolution  providing  that  the  governor  with  four  of  the 
council  shall  examine  -the  returns  of  the  votes  for  senators,  was  read 
and  passed  to  a  second  reading  without  debate. 

The  seventh  resolution  fixing  the  quorum  of  the  senate  at  nine- 
teen, was  read  and  passed  to  a  second  reading  without  debate. 

The  eighth  resolution  was  read  ;  which  provides  that  every  cor- 
porate town  containing  1200  inhabitants,  and  also  all  corporate 
towns  or  districts  now  united  for  the  purpose  of  electing  a  repre- 
sentative, and  having  together  a  like  number  of  inhabitants,  may 
elect  one  representative. 

Mr.  Pickman  of  Salem  said  he  was  constrained  by  a  sense  of  duty 
to  express  briefly  the  objections  which  he  had  against  the  system 
proposed  by  the  select  committee,  and  agreed  to  in  committee  of 
the  whole,  respecting  the  organization  of  the  house  of  representa- 
tives. He  considered  the  system  to  be  unequal  and  unjust — calcu- 
lated to  produce  a  greater  number,  generally,  in  the  house,  rather 
than  to  diminish  it — calculated  to  increase  the  expenses  of  the 
Commonwealth — and  a  bold,  dangerous  and  inexpedient  innovation 
on  the  present  system.  He  would  show  it  to  be  unequal  and  un- 
just, not  by  imaginary  cases,  but  by  mathematical  calculations. 
He  would  not  pledge  himself  for  perfect  accuracy  in  his  calcula- 
tions, but  they  were  sufficiently  accurate  to  justify  all  the  inferences 
that  he  should  make.  By  the  report,  all  the  towns  in  the  Com- 
monwealth, containing  from  1700  to  3400  inhabitants,  would  lose 
a  large  proportion  of  representation.  He  called  the  attention  of 
members  to  the  effect  it  would  produce  on  the  large  and  respectable 
county  of  Essex.  The  representation  of  Salem  would  be  reduced 
from  13  representatives  to  5,  of  Ipswich  from  4  to  1,  leaving  2370 
inhabitants  unrepresented ;  Newbury  from  6  to  2,  Lynn  from  5  to 
2,  Rowley  from  2  to  1,  Marblehead  from  6  to  2,  leaving  2300  in- 
habitants unrepresented.  It  was  unnecessary  to  go  into  more  par- 
ticulars. The  result  of  the  whole  was,  that  the  representation  for 
72,000  inhabitants  would  be  reduced  to  30,  while  Middlesex,  with 
only  52,000  inhabitants,  would  have  32  or  33  representatives.  He 
asked  if  this  was  not  unequal  and  unjust.  In  addition  to  this, 
Essex  would   pay  for  60  representatives  and   have  30  ;  Middlesex 


MASSACHUSETTS     CONVENTION.  505 

would  pay  for  38  or  39  and  have  33.  Was  not  this  unequal  and 
unjust  ?  Essex  had  frequently,  in  the  course  of  the  debates,  been 
put  on  a  footing  with  Suffolk.  But  Essex  derived  no  advantage 
from  the  senate  being  placed  on  the  basis  of  valuation.  Deriving 
no  advantage  from  this  principle,  why  should  it  suffer  the  diminu- 
tion in  its  representation  from  the  other  part  of  the.  system  ?  The 
county  of  Plymouth  was  in  a  similar  situation.  With  35.000  in- 
habitants it  would  have  16  representatives,  but  compared  with  Mid- 
dlesex it  ought  to  have  22.  Plymouth  sends  2  senators  only — it 
gains  nothing  from  the  principle  of  valuation.  Why  should  this 
arbitrary  rule  operate  to  its  disadvantage  without  giving  any  equiv- 
alent? When  gentlemen  considered  that  72.000  inhabitants  would 
have  no  more  representation  than  52.000 — that  the  towns  contain- 
ing between  1200  and  3600  inhabitants  would  suffer  a  loss  in  their 
representation,  and  yet  have  to  pay  for  the  representatives  of  the 
small  towns,  which  gained  in  representation,  they  could  not  but 
admit  that  the  system  was  unequal  and  unjust.  In  respect  to  the 
size  of  the  house,  it  would  be  more  numerous  and  more  expensive 
than  at  present ;  it  would  amount  to  275  or  280  ;  but  admitting 
that  it  would  not  exceed  260,  the  members  being  paid  from  the 
treasury  of  the  Commonwealth,  the  small  towns  which  would  pay 
but  a  small  part  of  the  tax  for  representatives,  would  be  induced 
always  to  send  a  representative.  There  was  no  reason  to  suppose 
the  representatives  would  not  attend  during  the  whole  session,  ex- 
cept such  as  were  prevented  by  the  providence  of  God  ;  making 
allowance  for  these,  from  240  to  250  would  usually  attend.  This 
was  about  a  hundred  more  than  attended  the  last  year.  The  whole 
number  chosen  last  year  was  195,  and  the  highest  number  that  ever 
attended  was  150.  By  the  proposed  system  we  should  have  to  pay 
250  annually,  whereas  in  common  times,  under  the  present  system, 
we  should  have  to  pay  for  150.  If  it  was  an  object  to  reduce  the 
house  for  the  facility  of  transacting  business.  150  were  enough,  and 
all  above  that  number  were  unnecessary.  But  the  strongest  objec- 
tion was.  that  20,000  voters,  voting  every  other  year,  were  put  on  a 
different  footing  from  the  other  voters.  This  was  a  dangerous  part 
of  the  system.  Every  one  of  these  20,000  would  be  incessantly 
applying  to  the  Legislature  to  be  put  on  the  same  ground  with  those 
who  voted  every  year.  He  did  not  believe  that  there  was  any  man 
who,  if  he  were  asked  whether  he  would  pay  half  a  dollar  and  vote 
every  year,  or  a  quarter  of  a  dollar  and  vote  every  other  year,  would 
not  reject  paying  the  quarter  of  a  dollar  and  voting  every  other  year. 
He  would  wish  to  have  the  right  of  voting  every  year  considered 
as  the  birthright  of  every  citizen.  The  amendment  which  permits 
140  small  towns  to  be  represented  every  tenth  year,  when  the  val- 
uation was  settled,  would  give  an  overwhelming  majority  to  decide 
everything.  He  had  been  on  the  committee  of  valuation,  and  had 
witnessed  the  efforts  made  to  put  the  country  towns  as  low  as  pos- 
sible, and  to  throw  the  burden  on  the  seaports.  He  was  astonished 
at  the  conduct  of  some  gentlemen  from  Boston,  who  seemed  to  con- 
64 


T)06  MASSACHUSETTS     CONVENTION. 

sider  the  senate  as  everything,  and  the  house  as  nothing.  The 
house  was  often  as  useful  a  check  as  the  senate,  and  it  was  of  more 
importance  that  the  house  should  be  established  on  right  principles 
than  that  the  senate  should.  He  had  voted  for  the  principle  of  the 
senate,  but  he  did  not  think  it  of  such  transcendent  importance  that 
everything  else  should  be  sacrificed  for  it.  He  should  prefer  that 
the  representatives  should  be  chosen  by  districts,  but  he  considered 
it  impracticable  to  obtain  the  adoption  of  that  plan,  and  he  was 
therefore  willing  to  adhere  to  the  present  system.  He  did  not  wish 
for  any  alteration  in  the  constitution,  except  so  much  as  was  neces- 
sary to  put  the  senate  on  its  old  footing.  He  considered  that  it  was 
the  just  and  proper  construction  of  the  constitution,  that  the  repre- 
sentatives should  be  paid  by  the  respective  towns.  He  would  not 
presume  that  the  Legislature  would  do  wrong,  but  if  it  should  pass 
an  act  for  paying  them  out  of  the  public  treasury,  a  house  of  500 
members  would  be  so  unwieldy  and  expensive,  that  the  act  would 
soon  become  unpopular,  and  be  repealed.  He  was  as  impartial  and 
independent  on  this  subject  as  any  man.  He  had  arrived  at  an 
age  when  life  and  its  solicitudes  must  soon  pass  away.  He  stood 
there,  not  for  himself  but  for  posterity.  ;  He  could  truly  say.  that  it 
had  always  been  his  ardent  desire  to  preserve  our  institutions,  and 
transmit  them  to  posterity  unimpaired  ;  and  he  begged  gentlemen 
to  consider  that  when  they  stood  upon  the  constitution  they  stood 
upon  strong  ground. 

Mr.  Prescott  said  that  the  question  was  whether  any  amendment 
should  be  made  to  the  present  system  of  representation,  for  the  gen- 
tleman from  Salem,  who  opposed  the  report  of  the  committee,  had 
proposed  no  new  plan.  The  number  of  representatives  by  the  last 
enumeration  of  polls  was  511,  and  by  the  next  would  be  as  high  as 
5 -10.  What  plan  had  been  offered  for  reducing  the  number  prefera- 
ble to  that  proposed  by  the  committee  ?  If  it  was  the  opinion  of 
the  House  that  the  number  ought  to  be  reduced,  and  no  other  plan 
was  proposed,  the  report  of  the  committee  must  be  taken,  however 
defective.  He  asked  if  it  was  practicable  to  do  business  with  a 
house  of  500,  or  if  a  house  which  might,  for  a  part  of  the  session, 
consist  of  that  number,  and  before  the  close  of  it  might  be  reduced 
to  a  very  small  number,  or  which  might  be  so  fluctuating,  that 
seven  or  eight  whole  quorums  of  different  members  might  be  formed, 
in  the  course  of  a  single  session-,  was  not  a  great  evil.  It  was  said 
that  if  the  members  were  paid  by  their  towns  they  would  not  'at- 
tend, and  the  house  would  not  be  too  large.  But  on  questions  of 
great  interest  they  would  attend  for  the  purpose  of  carrying  particu- 
lar measures,  and  would  then  return  to  their  homes  and  leave  a 
very  thin  house.  There  were  many  small  towns  which  would  send 
members  for  a  particular  purpose,  but  would  not  be  permanently 
represented,  and  it  was  for  the  interest  of  all  that  they  should  be 
represented,  and  equally.  It  was  objected  that  the  plan  was  une- 
qual. He  asked,  if  any  system  could  be  found  that  should  not 
operate   unequally.      A  representative    from  each  town  would  give 


MASSACHUSTTS    CONVENTION.  507 

290  members ;  and  if  the  large  towns  had  an  increased  representa- 
t  it  hi.  in  any  proportion  to  the  number  of  their  inhabitants,  it  would 
make  a  house  of  more  than  400  members.  There  was  therefore  no 
other  mode  of  reduction  than  by  uniting  the  small  towns,  or  per- 
mitting them  to  send  alternately.  The  latter  mode  seemed  to  be 
preferred  by  the  members  from  the  small  towns.  The  gentleman 
from  Salem  had  said  that  the  system  operated  unequally  on  counties 
and  towns.  This  was  true,  but  it  operated  on  none  more  unfavor- 
ably than  on  the  county  of  Suffolk,  which,  according  to  the  report, 
by  the  census  of  1810,  would  be  entitled  to  but  fourteen  members, 
while  her  proportion,  according  to  her  population,  compared  to  that 
of  the  whole  State,  would  be  twenty-one. 

Essex  would  have     .    ,     32 — proportion         .         38 
Middlesex  33  ...         28 

Worcester  38  ...  35 

Hampshire  44  ...  41 

Plymouth  13  ...  18 

Bristol       ...  13  ...  15 

Berkshire  22  ...  18 

Norfolk  will  neither  gain  nor  lose. 
It  was  true  there  was  an  inequality,  but  not  so  great  as  to  be  of 
much  importance.  He  did  not  agree  with  his  friend  from  Salem, 
that  what  was  granted  in  relation  to  the  senate  was  of  no  conse- 
quence. It  was  some  equivalent  for  what  was  lost  in  the  house. 
It  made  no  difference  that  they  are  to  come  from  a  particular  coun- 
ty, since  it  is  the  same  interest  that  they  represent.  If  the  ad- 
ditional senators  came  from  Essex  instead  of  Suffolk  he  should  be 
as  well  satisfied.  The  expense  of  the  house  would  by  this  plan  be 
reduced.  There  would  generally  be  no  more  than  two  hundred 
members  present,  and  there  would  be  a  degree  of  uniformity  in  the 
house.  He  had  proposed  a  limitation  of  the  number,  which  he 
hoped  would  be  adopted.  Although  the  small  towns  will  not  be 
entitled  to  a  representative  every  year,  they  will  have  their  full  pro- 
portion of  influence.  It  was  for  them  to  choose  whether  they  would 
be  represented  alternately,  or  would  have  the  power  of  uniting  for 
the  purpose  of  being  represented  permanently.  He  was  sorry  that 
they  had  not  accepted  the  proposition  for  authorizing  them  to  unite 
for  this  purpose.  If  any  member  from  a  small  town  would  now 
move  to  insert  that  proposition,  he  presumed  there  would  be  no 
objection  to  adopting  it. 

Mr.  Dwight  of  Springfield  said  that  the  amendment  agreed  to  in 
committee  of  the  whole,  authorizing  all  the  small  towns  to  send  a 
representative  on  every  year  of  taking  the  general  valuation,  ap- 
peared to  be  a  departure  from  the  principle  of  the  report.  He  could 
see  no  reason  for  it.  It  appeared  to  him  that  there  was  the  same 
reason  on  the  year  of  the  valuation  as  on  every  other  year,  for  ad- 
hering to  a  principle  which  would  give  something  like  equality  to 
the  representation  from  different  parts  of  the  Commonwealth.  It 
was  perfectly  obvious  that  on  this  year  the  small  towns  would  get 


508  MASSACHUSETTS    CONVENTION. 

double  the  influence  they  have  a  right  to  ;  and  by  exercising  this 
influence  at  each  return  of  the  general  valuation  they  will  have  a 
control  over  our  taxes  for  the  whole  time.  The  principal  objection 
to  the  present  system  was  that  the  body  is  too  numerous.  But 
we  should  look  only  at  practical  results.  It  will  be  found  that  in 
consequence  of  the  check  from  requiring  the  payment  of  members 
by  the  towns,  the  number  has  been  so  reduced  that  it  has  not  been, 
in  fact,  so  large  as  this  report  will  make  it.  The  average  number 
of  members  attending  for  several  years  is  not  more  than  one  hundred 
and  fifty.  The  operation  of  the  report,  then,  will  be  to  make  the 
house  more  unwieldy  and  expensive  than  the  old  system.  He  was 
in  favor  of  districting.  As  far  as  he  understood  the  views  of  gen- 
tlemen, they  thought  that  this  would  be  the  best  system,  if  it  could 
be  carried.  Why  should  we  distrust  the  good  sense  of  the  people 
of  the  Commonwealth,  and  refuse  to  give  a  chance  for  a  system 
which  is  acknowledged  to  be  the  most  perfect,  from  the  apprehen- 
sion that  the  people  will  not  approve  of  it.  He  wished  at  least, 
that  the  sense  of  the  House  might  be  taken  upon  the  expediency  of 
adopting  this  principle,  and  also  on  the  question  of  retaining  the 
present  system  so  modified  as  to  expressly  take  away  the  right  of 
paying  the  members  out  of  the  public  treasury.  He  wished  first  to 
take  the  latter  question,  and  for  that  purpose,  he  offered  the  follow- 
ing resolution  : 

•l  That  it  is  proper  and  expedient  so  far  to  alter  and  amend  the  constitution,  as  ex- 
pressly to  provide  that  the  attendance  of  members  of  the  house  of  representatives 
shall  in  all  cases  be  paid  by  their  respective  towns ;  and  that  it  is  not  expedient  to 
make  any  other  alteration  in  this  part  of  the  constitution." 

That  the  Convention  might  go  into  committee  of  the  whole  on 
this  resolution,  Mr.  Dwight  moved  that  the  report  of  the  committee 
be  laid  on  the  table. 

Mr.  Bond  opposed  the  motion,  because  he  wished  first  to  try  the 
question,  whether  the  representatives  should  be  chosen  by  districts, 
which  he  considered  much  the  preferable  mode. 

Mr.  Lawrence  was  in  favor  of  the  report,  and  for  that  reason  op- 
posed to  the  motion. 

Mr.  Webster  suggested  that  as  the  sense  of  the  House  could  not 
be  taken  in  Convention  on  the  other  projects,  it  would  be  best  to 
go  into  committee  of  the  whole,  and  refer  to  that  committee  all 
the  projects  which  have  been  offered.  He  was  in  favor  of  the 
report  if  the  House  generally  approved  of  it.  But  he  should  not  be 
in  favor  of  it  if  he  should  find  there  was  any  strong  local  opposition 
to  it.  He  thought  they  ought  to  go  into  committee  of  the  whole, 
and  affirm  or  negative  the  different  propositions  offered,  in  their 
proper  order.  There  were  two  causes  for  altering  the  constitution 
— one  that  the  house  was  too  large,  and  the  other  that  there  was 
danger  it  would  be  increased  by  adopting  the  system  of  paying  out 
of  the  treasury,  which  would  bring  up  a  body  of  more  than  five 
hundred.  The  natural  order  would  be  to  take  up  first  the  question, 
whether  the  present  system  shall  be  retained  with  an  express  pro- 


MASSACHUSETTS     CONVENTION.  509 

vision  that  the  members  shall  be  paid  by  the  towns.  If  that  was 
rejected,  and  by  vote  of  the  small  towns,  we  should  hear  no  more 
complaint  of  the  disfranchisement  of  the  small  towns.  He  wished 
to  have  the  recorded  sense  of  the  towns,  whether  they  would  accept 
the  right  of  permanent  representation,  on  the  condition  of  paying 
their  own  members.  If  they  would  not,  the  House  would  be  ready 
to  proceed  with  a  firm  step  in  reducing  the  number  in  the  best 
mode  that  should  present  itself.  Next  would  come  the  question  of 
districting,  and  if  that  should  be  negatived,  the  House  would  be 
fully  prepared  to  act  on  the  report. 

Mr.  Sibley  of  Sutton  was  opposed  to  going  into  committee. 
Mr.  Blake  was  satisfied  with  the   arguments  which  had  been 
offered  in   favor   of  the  report.     He   thought  that  little   attention 
should  be  paid  to  objections  made  to  it,  which  were  not  accom- 
panied with  some  plan  for  avoiding  them. 

Mr.  Martin  was  opposed  to  the  report  of  the  select  committee, 
and  in  favor  of  the  proposition  for  requiring  towns  to  pay  their  own 
members. 

Mr.  Jackson  of  Boston  said  he  understood  that  the  gentleman 
who  made  this  motion  preferred  the  system  of  districts.  The  gen- 
tleman from  Northampton  had  offered  some  resolution  proposing 
this  mode.  He  thought  that  these  resolutions  might  now  be  taken 
up  as  a  substitute  for  the  resolution  before  the  House,  and  render 
the  present  motion  unnecessary. 

Mr.  Dwight  withdrew  his  motion  for  laying  the  resolution  on  the 
table. 

Mr.  Lyman  of  Northampton  moved  to  amend  by  striking  out  the 
resolution  before  the  House,  and  substituting  the  resolutions  sub- 
mitted by  him  on  Saturday  last  for  dividing  the  Commonwealth 
into  districts. 

The  motion  was  decided  by  the  President  not  to  be  in  order, 
the  resolutions  not  having  been  discussed  in  committee  of  the 
whole. 

Mr.  Lincoln  moved  to  amend  the  eighth  resolution  by  adding  a 
proviso,  "  that  every  town  shall  have  a  right  to  one  representative." 
This  motion  was  decided  to  be  not  in  order,  on  the  ground  that  it 
proposed  a  substantial  amendment  to  the  constitution,  on  a  prin- 
ciple which  had  not  been  discussed  in  committee  of  the  whole. 

Mr.  Banister  of  Newburyport  offered  for  consideration  a  propo- 
sition as  a  substitute  for  that  of  the  select  committee.  That  every 
town  of  a  thousand  inhabitants  should  have  one  representative,  that 
two  thousand  should  be  the  mean  increasing  number ;  that  every 
town  which  now  has  a  representative  shall  still  be  entitled  to  one, 
and  that  the  attendance  should  be  paid  by  the  towns — a  new  appor- 
tionment to  be  made  after  each  census. 

Mr.  Jackson  moved  to  amend  by  striking  out  the  resolution,  and 
inserting  that  which  had  been  offered  by  Mr.  Lyman,  and  discussed 
in  committee  of  the  whole,  some  days  since.  It  contained  the  gen- 
eral  principle  that  representatives  should    be  chosen   in   districts, 


510  MASSACHUSETTS    CONVENTION. 

without  going  into  details — representatives  not  to  exceed  one  for 
three  thousand  inhabitants.  These  could  be  added  by  separate  res- 
olutions, if  the  general  principle  should  be  agreed  to. 

Mr.  Varnum  called  for  a  division,  so  as  to  take  the  question  first 
on  striking  out  the  resolution  of  the  select  committee. 

Mr.  Jackson  said  that  he  had  not  heard,  and  he  did  not  wish  to 
know  what  would  be  the  effect  of  any  proposition  upon  the  polit- 
ical parties.  He  thought  that  a  very  unimportant  consideration. 
He  looked  at  the  question  only  as  it  regarded  the  construction  of 
the  house  for  answering  the  purposes  for  which  it  is  principally  in- 
tended. Few  of  the  objects  for  which  the  house  is  constituted, 
relate  to  politics.  The  principal  object  is  to  make  laws.  As  his 
whole  life  had  been  devoted  to  the  consideration  of  the  laws,  it  was 
with  a  view  solely  to  this  object  that  he  felt  interested  in  the  ques- 
tion. He  did  not  care  whether  a  larger  or  a  smaller  number  came 
from  Suffolk  or  from  Berkshire — but  he  did  care  whether  the  house 
was  so  constituted  as  to  make  wise  and  equal  laws.  He  wanted, 
and  the  people  want  a  Legislature  that  will  be  able  to  look  to  the 
state  of  the  Commonwealth — to  make  such  laws  as  are  suitable  to 
regulate  the  intercourse  between  man  and  man,  and  to  provide  for 
the  good  order  and  welfare  of  society,  as  well  as  to  provide  for  the 
petty  interests  and  local  concerns  of  particular  corporations.  If  we 
could  have  a  house  of  representatives  of  eighty,  a  hundred,  or  a 
hundred  and  twenty  members,  with  a  senate  of  thirty-six,  it  would 
constitute  a  Legislature,  he  thought,  more  suitable  for  these  pur- 
poses than  a  larger  body.  One  object  was  to  reduce  the  house  of 
representatives — another,  that  the  people  of  different  parts  of  the 
Commonwealth  should  enjoy  an  equal  influence.  The  proposition 
of  the  gentleman  from  Northampton  would  effect  these  objects.  It 
has  the  merit  of  perfect  equality — it  would  give  to  every  voter  the 
same  influence  in  the  election  of  members,  and  the  same  influence 
in  the  house.  The  gentleman  from  Salem  had  clearly  and  forcibly 
pointed  out  some  striking  inequalities  in  the  report.  It  was  besides 
liable  to  the  objections  that  the  small  towns  were  to  be  half  the 
time  deprived  of  their  representation,  and  that  it  still  contained  a 
number  larger  than  could  deliberate  clearly  and  coolly.  If  the  num- 
ber was  smaller,  they  would  all  attend,  because  their  absence  would 
be  noticed,  and  with  one  body  sitting  all  the  time,  the  business 
would  be  completed  in  shorter  sessions.  It  was  said  there  were 
prejudices  against  this  mode.  He  had  too  good  an  opinion  of  the 
people  of  this  Commonwealth  to  believe  they  would  reject  a  system 
that  was  most  suitable,  and  that  was  perfectly  just  and  equal,  for 
these  prejudices.  There  might  be  some  opposed  to  it  from  private 
motives,  but  ninety-nine  in  a  hundred  would  have  none  such.  By 
the  present  system,  men  are  chosen  for  local  purposes,  and  as  soon 
as  they  get  the  measure  through  for  which  they  were  elected,  they 
go  home  and  pay  no  attention  to  the  public  interest.  Do  we  want 
to  have  men  to  come  here  as  representatives  of  the  corporations 
only — or  as  men  of  enlarged  views  to  legislate  for  the  whole  Com- 


MASSACHUSETTS    CONVENTION.  511 

monwealth  ?  The  gentleman  from  Salem  had  exposed  the  inequal- 
ities of  the  system  reported  by  the  committee,  in  a  manner  so  un- 
answerable that  he  would  say  nothing  upon  that  subject,  but  would 
leave  it  upon  his  argument.  As  to  the  argument  founded  on  the 
corporate  rights  of  towns,  there  was  nothing  in  it.  They  have  a 
right  to  have  a  constitution  as  good  as  they  can  make  it,  but  it  is 
not  a  corporate  right,  but  a  right  of  individuals.  The  burdens  im- 
posed on  towns  to  make  roads,  support  schools,  &c,  are  for  their 
own  benefit,  and  if  they  are  not  fully  compensated  by  the  advan- 
tages which  they  exclusively  derive,  they  have  the  further  equiva- 
lent that  the  same  burdens  are  imposed  on  all  other  towns.  But 
suppose  they  have  burdens  in  consequence  of  their  corporate  exist- 
ence, having  a  right  to  send  a  representative  here,  will  not  make 
them  less ;  he  cannot  take  them  off.  He  did  not  like  the  proposi- 
tion in  the  report,  so  well  as  the  present  constitution.  It  would 
give  a  larger  house,  cost  more  money,  and  do  less  good.  He 
thought  it  was  not  the  best  that  could  be  adopted,  and  he  did  not 
see  any  serious  objection  to  that  of  the  gentleman  from  Northamp- 
ton. If  adopted  here,  and  the  majority  of  the  people  should  be  in 
favor  of  it,  he  thought  it  would  be  the  best  system.  If  the  people 
should  reject  it,  we  should  be  in  the  same  situation  in  which  we 
now  are.  He  hoped  that,  modified  as  it  might  be,  it  would  pass, 
and  the  Convention  could  then  go  on  to  arrange  the  districts.  Part 
of  the  plan  was,  that  the  districts  should  remain  forever  unalterable. 
There  would  then  be  no  change  for  party  purposes,  and  the  appor- 
tionment of  representatives,  being  matter  of  figures,  would  not  be 
liable  to  abuse. 

Mr.  Story  said  that  after  the  able  and  unanswerable  argument  of 
the  gentleman  who  last  spoke,  he  would  say  nothing  in  support  of 
the  proposition,  but  he  thought  that  the  proper  and  necessary  course 
before  acting  on  the  report  of  the  select  committee,  was  to  act  on 
all  the  other  propositions.  He  hoped  therefore  that  the  gentleman 
from  Dracut  would  withdraw  his  call  for  a  division  of  the  motion. 

Mr.  Varnitm  thought  that  the  able  argument  of  the  gentleman 
from  Boston,  went  in  favor  of  the  proposition  of  the  select  commit- 
tee as  fully  as  it  did  in  favor  of  that  of  the  gentleman  from  North- 
ampton. The  report  of  the  select  committee  was  kept  so  continu- 
ally buried  in  smoke,  that  it  was  impossible  to  get  sight  of  it.  He 
had  made  the  motion  to  divide  for  the  purpose  of  coming  to  the 
question  on  the  resolution  of  the  select  committee — those  who  were 
in  favor  of  it  in  preference  to  all  other  propositions,  would  vote 
against  striking  it  out.  He  thought  it  was  time  to  come  to  this 
question,  and  he  could  not  therefore  withdraw  his  motion. 

Mr.  Austin  of  Charlestown  was  in  favor  of  the  motion  for  the 
reasons  urged  by  the  gentleman  from  Boston.  He  proceeded  to 
support  the  motion  on  other  grounds. 

Mr.  Jackson  said  that  if  the  motion  should  be  carried  to  strike 
out,  and  the  proposition  for  districting  should  not  prevail,  any  one 


512  MASSACHUSETTS     CONVENTION. 

who  voted  for  striking  out,  could  move  to  reconsider  the  vote  for 
striking  out.  so  as  to  re-insert  the  resolution  of  the  select  committee. 

The  question  on  striking  out  the  resolution  of  the  select  commit- 
tee was  taken,  and  decided  in  the  negative — 85  to  249. 

The  amendment  made  in  committee  of  the  whole,  by  inserting 
the  word  districts,  was  agreed  to. 

The  question  was  then  stated  on  passing  the  resolution. 

Mr.  Martin  spoke  aginst  it. 

Mr.  Hoyt  of  Deerfield  had  been  uniformly  in  favor  of  districting, 
but  he  was  satisfied  that  the  House  would  not  agree  to  it,  and  that 
the  people  would  not  sanction  it.  He  saw  no  other  way  of  reducing 
the  number  of  the  house,  than  to  accept  the  report  of  the  commit- 
tee. He  did  not  expect  it  would  reduce  the  expenses  of  the  house, 
which  would  be  a  great  object.  He  had  seen  three  or  four  hundred 
members  present  at  the  beginning  of  a  session,  and  before  the  ses- 
sion expired  the  house  was  obliged  to  send  out  precepts  into  the 
neighboring  towns  to  keep  a  quorum. 

Mr.  Bond  was  opposed  to  the  report  because  it  c|id  not  reduce 
the  house  of  representatives  so  low  as  it  would  commonly  be  under 
the  present  constitution ;  and  for  this  reason  he  should  vote  against 
the  resolution. 

Mr.  J.  Little  of  Newbury  called  for  the  yeas  and  nays  on  the 
question.     Agreed  to. 

The  question  was  then  taken,  and  the  resolution  passed  to  a  sec- 
ond reading,  by  the  following  vote  : 

Yeas — Messrs.  Abbott,  Aldrich,  E.  Allen,  J.  Allen,  P.  Allen,  Alvord,  Apthorp, 
Arms,  Atherton,  J.  T.  Austin,  J.  Baldwin,  T.  Baldwin.  Bangs,  S.  Barker  of  Methu- 
en,  S.  Barker  of  Andover,  G.  Bartlett,  E.  Bartlett,  Barrett,  Bassett,  Billings,  G. 
Blake,  J.  Blake,  Blanchard,  A.  Bliss,  Bowdoin,  Bowman,  J.  Boyden,  S.  Boyden, 
Brooks,  Burts,  E.  Chapin,  Cheney,  Clark  of  Ward,  Clark  of  Waltham,  Cleaveland, 
Cobb,  Cook,  Coolidge,  Conant,  Cotton,  Crandon,  Crehore,  Crocker,  C.  Cummings, 
S.  Dana,  D.  Davis,  Dawes,  P.  Dean,  Dewey,  E.  Doane,  J.  Doane,  J.  C.  Doane, 
Dodge,  S.  Draper.  J.  Draper,  A.  Draper,  Drury,  W.  Dutton,  D.  Dutton,  Eames, 
Edwards,  Ellis,  R.Eels,  G.  Eels,  Evans,  N.  Fisher,  J.  Fisher,  Flint,  Foote,  Forward, 
Foster,  Fowler,  J.  Freeman,  S.  Freeman,  French,  H.  Gardner,  A.  Gates,  Gibbs, 
Gilford,  J.  Green,  Greenleaf,  Gurney,  E.  Hale,  N.  Hale,  D.  Hale,  A.  Hamilton,  H. 
Hamilton,  W.  Harris,  T.  Harris,  jr.,  Hazard,  Hearsey,  Hedge,  Hill,  Hills,  Hoar  of 
Concord,  Hodges,  Holden,  A.  Holmes,  Hopkins,  Houghton,  N.  Houghton,  Howes, 
S.  S.  Howland,  Hoyt,  Hull,  Humphrey,  VV.  Hunewell,  J.  Hunewell,  Hussey,  C. 
Hyde,  J.  Jackson,  A.  Jewett,  J.  Jewett,  Jones,  Judd,  Kasson,  Kellogg,  Kimball,  E. 
King,  Knowles,  Knowlton,  L.  Lawrence,  B.  Lawrence,  Leland,  L.  Leonard,  N. 
Leonard,  Z.  L.  Leonard,  Lester,  Lewis,  H.  Lincoln,  T.  Lincoln,  Joseph  Lock,  Love- 
joy,  Mack,  Makepeace.  Marston,  T.  Mason,  Messinger,  Miller,  Morse,  P.  Morton, 
Ezra  Mudge,  A.  T.  Newhall,  Nickerson,  Nichols,  Oldham,  T.  Paige,  L.  M.  Parker, 
Parkes,  Perham,  Pickens,  Picket,  A.  Pierce,  L.  Pierce,  V.  Pierce,  E.  Phelps,  M. 
Phelps,  J.  Phillips,  VV.  Phillips,  Phipps,  Pomeroy,  A.  Porter,  S.  Porter,  Powers,  B. 
Pratt,  N.  Pratt,  S.  Prentiss.  Prescott,  Rantoul,  J.  Reed,  S.  Reed,  Reeves,  Reynolds, 
Rice,  J.  Richards,  N.  Richards,  Robbins,  Root,  B.  Russell,  D.  Russell,  A.  Samp- 
son, E.  Sampson,  Sargent,  Saunders,  Saunderson,  Savage,  Scott,  Sibley,  B.  Smith, 
O.  Smith,  Spra-ue,  Spurr,  Starkweather,  Stearns,  F.  Stebbins,  L.  Stebbins,  Stick- 
ney,  Stone  of  Hardwick,  Stone  of  Stow  and  Boxborough,  Joseph  Story,  Stowell,  R. 
Sullivan,  VV.  Sullivan,  Taft,  Talbot,  Taylor,  Thomas,  J.  Thompson,  J.  Tilden,  Tink- 
ham,  Torrey,  Townsend,  Trask,  Trowbridge,  Trull,  Tuckerman,  Tufts,  Turner,  Var- 
num,  J.  Wade,  Wakefield,  L.  Walker,  Walter,  Walton,  Ward,  Ware,  R.  Webster, 
D.  Webster,  Webber,  Wells.  J.  Welles,  A.  Whitney,  J.  Whitnev,  W.  Whitney,  S, 


MASSACHUSETTS    CONVENTION.  513 

White,  J.  Whitman,  D.  Whitman,  E.  Whipple,  Whitaker,  N.  W.  Williams,  Win- 
ship,  Winsor,  E.  Wood,  Wyles,  Young — 24r>. 

j\*nyS — J.  Allyne,  Almy,  W.  Austin,  Jonathan  Bacon,  Bailey,  Banister,  E.  D. 
Bangs,  A.  Bartlett,  B.  Bartlett,  W.  Bartlett,  J.  Bartlett,  jr.,  Beach,  J.  Bond,  G.  Bond, 
Bourne,  Boylston.  Boyse,  Bramhall,  Brownell,  S.  Bullock,  Bu^bee,  Gary,  Chamber- 
lain, Chandler,  M.  Chapin,  Childs,  J.  Y.  Clark,  Collamore,  Conkey,  Cutler,  Daggett, 
D.  Dana,  N.  M.  Davis,  J.  Davis,  R.  Dean,  Dearborn,  E.  Dickenson,  Dimmick,  Dunbar, 
Dwight,  B.  Ellis,  Endicott.  Estabrook,  Farwell,  Fay,  Fearins,  Felt,  S.  Field,  R. 
Field,  Fish,  Fiske,  Fobes,  Fowle,  Fox,  Frazer,  R.  Freeman,  Frink,  Gale,  Z.Gates, 
Godfrey,  Gray,  E  Green,  Gregory,  Grosvenor,  B.  Hall,  N.  Hall,  Harding,  Heard, 
Hinckley,  S.  Hoar,  Howard,  S.  Hubbard,  E.  Hubbard,  W.  Hunt,  C.Jackson,  Kemp- 
ton,  Kent,  James  Keyes,  John  Keyes,  B.  Knight,  Lathrop,  Leach,  J.  Lincoln,  L. 
Lincoln,  M.  Little,  J.  Little,  John  Locke,  Longley,  Low,  J.  Lyman,  Martin,  May, 
Melville.  D.  Mitchell,  Nelson,  J.  Newhall,  J.  Noyes,  N.  Noyes,  Olney,  J.  A.  Par- 
ker, J.  Parker,  Parrott,  Pearce,  Pickman,  Pierson,  Pike,  Pope,  A.  Porter,  S.  Pratt, 
J.  Prince  of  Boston,  Quincy,  Rider,  A.  Richardson,  J.  Richardson,  Joseph  Rich- 
ardson, J.  Russell,  S.  Russell,  Saltonstall,  Sanger,  Snwyer,  Shaw,  Shepherd,  Sisson, 
A.  Smith,  Jonathan  Story,  Sturgis,  A.  Thompson,  Z.  Thompson,  Thorndike,  Thur- 
ber,  C.  Tilden,  Tillinghast,  Tyler,  N.Wade,  Warren,  Waterman,  S.  A.  Wells,  Whee- 
ler, Whittemore,  C  White,  A.  Whitman,  W.  Whipple,  Whiton,  Wilde,  Eliphalet 
Williams,  S!  Willard,  Wingate— 147. 

Leave  of  absence  was  granted  to  Messrs.  Davidson  of  Gloucester, 
Walker  of  Norton.  Harding  of  Harvard,  and  Leonard  of  Stur- 
b  ridge. 

At  3  o'clock  the  House  adjourned. 


Wednesday,  January  3. 

The  House  met  at  half-past  9  o'clock,  and  attended  prayers  of- 
fered by  the  Rev.  Mr.  Palfrey ;  after  which  the  journal  of  yesterday 
was  read. 

Senate  and  House  of  Representatives. — The  House  proceeded  to 
the  consideration  of  the  unfinished  business  of  yesterday. 

The  ninth  resolution  of  the  select  committee  on  the  senate  and 
house  of  representatives,  as  reported  by  a  committee  of  the  whole, 
which  provides  that  2400  inhabitants  shall  be  the  mean  increasing 
number  which  shall  entitle  a  town  to  an  additional  representative, 
was  read. 

A  member  from  W^est  Springfield  moved  to  amend  the  resolution 
so  as  to  make  2000  the  mean  increasing  number. 

Mr.  Freeman  of  Boston  opposed  the  amendment,  as  making  the 
ratio  of  increase  unjust. 

The  amendment  was  negatived,  and  the  resolution  passed  to  a 
second  reading. 

The  tenth  resolution,  which  provides  that  each  town  containing 
less  than  1200  inhabitants — and  also  all  the  towns  and  districts  now 
united  for  the  purpose  of  choosing  a  representative,  having  together 
less  than  1200  inhabitants,  shall  be  entitled  to  elect  a  representative 
every  other  year,  was  read,  and  passed  to  a  second  reading,  without 
debate. 

The  eleventh  resolution,  which  makes  it  the  duty  of  the  Legis- 
lature, at  their  first  session  after  the  census  now  taking  under  the 
authority  of  the  United   States    shall  be  completed,  to  class  the 
65 


514  MASSACHUSETTS     CONVENTION. 

towns  in  each  county  containing  less  than  1200  inhabitants,  for 
the  purpose  of  choosing  representatives,  was  read. 

Mr.  Lawrence  of  Groton  moved  to  amend  by  inserting  after  the 
word  "completed,"  these  words,  viz.,  "and  after  every  subsequent 
census  taken  as  aforesaid."  Mr.  L.  said  his  object  was  to  remove  any 
ambiguity  with  respect  to  the  power  of  the  Legislature  to  class  the 
towns  more  than  once.  / 

The  amendment  was  adopted,  and  the  resolution  passed  to  a  sec- 
ond reading. 

The  twelfth  resolution,  which  provides  that  when  the  population 
of  any  of  the  towns  classed  as  before  mentioned,  shall  amount  to 
1200,  such  town  shall  be  entitled  to  elect  a  representative,  was 
read,  and  passed  to  a  second  reading,  without  debate. 

The  thirteenth  resolution,  which  provides  that  any  town  hereafter 
incorporated  shall  be  entitled  to  send  a  representative  when  it  shall 
contain  2400  inhabitants,  and  not  before,  was  read,  and  passed  to 
a  second  reading  without  debate. 

The  fourteenth  resolution,  which  provides  that  the  members  of 
the  house  of  representatives  may  be  paid  for  attending  the  General 
Court  out  of  the  treasury  of  the  Commonwealth,  was  read,  and  the 
amendment  made  in  committee  of  the  whole,  changing  "  may  "  into 
"  shall,"  was  agreed  to. 

The  question  being  upon  the  resolution  passing  to  a  second 
reading, 

Mr.  S.  A.  Wells  of  Boston  said  that  he  felt  compelled  by  a  sense 
of  duty  to  oppose  the  farther  progress  of  the  resolution.  Its  opera- 
tion was  so  unequal  and  unjust,  that  he  conceived  it  would  not,  if 
fully  understood,  be  adopted  by  the  Convention  ;  and  if  it  were 
adopted,  he  doubted  whether  it  would  be  ratified  by  the  people. 
This,  to  his  mind,  was  a  consideration  that  merited  attention.  If 
the  people  were  dissatisfied  with  parts  of  the  amendment,  it  might 
lead  them  to  reject  the  whole.  The  inequality  of  the  operation  of 
the  resolution  extended  to  and  would  be  felt  by  a  very  large  body 
of  the  people  of  the  Commonwealth.  This  inequality,  both  as  it 
respects  the  representation  of  the  several  counties,  and  the  propor- 
tion of  the  expense  to  be  paid  for  its  support,  will  be  constantly 
increasing.  He  had,  he  said,  made  a  statement  *  of  the  population 
of  the  several  counties,  the  number  of  representatives  which  that 
population  would  give  to  each,  the  number  which  each  would  be 
entitled  to  by  the  proposed  mode  of  representation,  and  the  num- 
ber that  each  might  send  to  the  Legislature,  and  would  have  to 
support.  He  would  not  vouch  for  the  perfect  accuracy  of  the 
statement,  but  he  believed  it  to  be  sufficiently  correct  for  his  pur- 
pose. By  this  it  appeared,  that  the  county  of  Suffolk  is,  upon  its 
population,  entitled  to  14  representatives,  but  would  have  to  pay  for 
51,  making  a  difference  of  more  than  37.  The  county  of  Essex, 
which  contains  72,000  inhabitants,  is,  upon  this  population,  enti- 
tled to  30  representatives,  would  send  32,  and  pay  for  45 ;  and  the 
county  of  Middlesex,  containing  nearly  53,000  inhabitants,  is  enti- 

*  See  next  page. 


MASSACHUSETTS     CONVENTION. 


515 


tied  to  22  ;  but  by  the  mode  recommended,  would  send  33,  and  pay 
for  less  than  28.  Thus  these  two  counties,  between  which  there  is 
a  difference  of  nearly  20,000  of  inhabitants,  send  nearly  the  same 
number  of  representatives.  But  the  largest  county  will  pay  for  13 
more  than  it  is  represented  by,  and  the  latter  for  5  less  than  the 
number  it  may  have  in  the  Legislature.  Again,  the  county  of 
Worcester,  which  contains  a  population  of  64,000,  would  he  entitled 
to  27,  but  may  send  41,  and  have  to  pay  but  for  31.  Thus  this 
county,  which  is  less  by  9000  inhabitants  than  Essex,  will  have  9 
more  representatives  ;  Nantucket,  which  by  its  population  is  enti- 
tled to  3,  will  have  to  pay  for  nearly  6.  This  inequality  exists 
more  or  less  in  all  the  counties,  and  the  burden  will  be  felt  exclu- 
sively by  the  counties  of  Suffolk,  Essex,  and  Nantucket,  and  he 
thought  the  inhabitants  of  those  counties  would  not  ratify  the 
alteration  proposed,  if  adopted  by  the  Convention  ;  and  so  manifestly 
unequal  and  unjust  is  the  system,  that  he  presumed  those  of  other 
counties  might  for  those  reasons  be  induced  to  reject  it.  He  there- 
fore hoped  that  this  part  of  the  report  would  not  be  accepted. 

Mr.  Martin  of  Marblehead  was  in  favor  of  the  towns  paying  their 
own  representatives,  and  opposed  to  the  resolution  on  the  ground  of 
its  operating  unequally  and  unjustly  upon  the  large  towns.  He 
said  a  great  deal  about  the  system  of  the  select  committee  being  an 
unjustifiable  bargain. 

Mr.  Prescott  of  Boston  said  he  was  fully  aware  that  the  large 
towns  would  have  to  contribute  to  the  payment  of  the  representa- 
tives of  the  small  towns ;  but  the  house  of  representatives  was  to 
be  reduced,  and  it  was  necessary  to  offer  an  inducement  to  the 
small  towns  to  give  up  a  part  of  their  representation.  It  was  well 
known  that  the  representatives  from  small  towns  were  in  the  habit 
of  attending  the  General  Court  very  little,  so  as  to  make  a  constant 


STATEMENT  REFERRED  TO  ON  PRECEDING  PAGE. 


No.   of  Rep's 

No.  of  Rep's 

Taxes  paid  by 

No   of  Rep's 

Counties. 

Population  of 

by  Hie  agg'i 

by  town-. 

the  several 

to  he  paid 

1810. 

population    of 

towns. 

separately. 

counties. 

lor  by  each 
county. 

Suffolk,     -     -     - 

34,381 

14 

14 

21,022.66 

51* 

Essex,       -     -     - 

7-2,888 

30 

32 

18,421.26 

45J 

Middlesex,    -     - 

52,789 

22 

33 

11,344.01 

27J 

Norfolk,         -     - 

36,245 

13 

18 

6,692.02 

m 

Plymouth,      -     - 

35,169 

15 

18 

5,930.68 

14? 

Bristol,           -     - 

37,168 

16 

18 

5,974.65 

148 

Barnstable,    -     - 

22,211 

9 

12 

2,427.99 

55 

Dukes,           -     - 

3,290 

1 

2 

476 

H 

Nintucket,    -     - 

6,807 

3 

3 

2,188 

5| 

Worcester,    -     - 

64,910 

27 

41 

12,749.31 

31* 

Hampshire,    -     - 

23,545 

10 

14 

4,021.35 

95 

Hampden,      -     - 

24,423 

10 

15 

3,914.(16 

9$ 

Franklin,        -     - 

28,307 

12 

16 

4,030.66 

95 

Berkshire,      -     - 

35,907 

15 

21 

5,322.64 

13 

472,040 

197 

257 

104,515.89 

257 

516  MASSACHUSETTS    CONVENTION. 

change  during  the  session  in  the  popular  branch.  Paying  them  out 
of  the  public  treasury  would  ensure  an  attendance  during  the  whole 
session,  and  the  business  would  be  transacted  better.  It  was  the 
understanding  of  the  select  committee  that  all  the  resolutions 
formed  a  system,  and  that  if  some  of  them  were  accepted,  all  of 
them  ought  to  be. 

Mr.  Quinct  of  Boston  said,  with  respect  to  the  principle  of 
reduction,  that  he  wished  gentlemen  to  understand  what  they  were 
doing.  They  were  depriving  towns  of  their  right  of  sending  their 
full  number  of  representatives  when  any  great  exigency  should 
require  a  large  house,  and  were  increasing  the  number  permanently, 
— since,  if  the  representatives  were  paid  out  of  the  public  treasury, 
there  would  always  be  a  full  house.  He  looked  to  the  good  sense 
of  the  people  to  reject  the  system  proposed. 

Mr.  Prince  of  Boston  opposed  the  resolution,  because  it  would 
operate  very  unjustly  on  that  town,  without  any  equivalent. 

Mr.  Flint  of  Reading  said  there  was  not  so  much  inequality  as 
gentlemen  seemed  to  suppose,  in  the  large  towns  contributing  to 
the  payment  of  the  representatives  from  the  small  towns.  If  a 
representative  from  a  small  town  should  attend  the  General  Court, 
his  services  would  be  as  beneficial  as  those  of  a  representative  from 
a  large  town.  He  would  work  during  the  whole  session,  for  the 
good  of  the  whole  community,  without  being  able  to  get  excused, 
except  in  very  urgent  cases.  It  was  therefore  not  so  much  like 
oppression  to  make  the  large  towns  contribute  to  the  compensation 
for  his  services,  as  it  would  be  to  oblige  the  small  towns  to  bear  the 
whole  burden.  It  was  proper  that  the  Commonwealth  should  pay 
for  services  performed  for  the  benefit  of  the  Commonwealth.  He 
mentioned,  as  an  inequality  in  the  present  system,  that  some 
towns  were  in  the  habit  of  sending  no  representatives  ;  thus  making 
the  burden  of  legislation  to  be  borne  entirely  by  the  other  towns, 
while  they  derived  equal  benefit  from  the  laws  which  were  passed. 

Mr.  Rantoul  of  Beverly  said  the  compromise  extended  only  to 
the  number  of  representatives  as  an  equivalent  for  the  greater  rep- 
resentation in  the  senate.  He  considered  the  present  resolution  as 
a  distinct  proposition.  It  was  better  to  let  the  constitution  remain 
on  this  subject  as  it  now  stands.  A  large  part  of  the  travel  of  mem- 
bers was  now  paid  by  Suffolk  and  Essex  :  and  if  it  should  be  neces- 
sary to  ensure  a  sufficient  number  of  representatives  to  transact  the 
business  of  the  Commonwealth,  the  Legislature  could  provide  for 
paying  the  members  out  of  the  public  treasury.  He  was  opposed 
to  the  present  resolution. 

Mr.  Austin  of  Boston  hoped  the  resolution  would  prevail.  Indi- 
viduals attended  the  General  Court  to  take  care  of  the  Common- 
wealth, and  not  of  their  particular  towns,  in  the  same  manner  as 
members  of  Congress  act  for  the  United  States,  and  are  paid  from 
the  public  treasury.  As  he  voted  for  the  part  of  the  compromise 
which  was  beneficial  to  the  large  towns,  he  felt  compelled  by  a 
regard  to  something  like  good  faith  to  vote  in  favor  of  the  other 
part. 


MASSACHUSETTS    CONVENTION.  517 

Mr.  Story  of  Salem  said,  that  in  point  of  good  faith,  as  he  had 
voted  for  the  preceding  resolution  he  was  bound  to  vote  for  this  one, 
though  he  was  aware  that  the  town  he  represented  would  suffer  by 
the  adoption  of  the  whole  system,  in  compromising  with  other 
towns.  But  it  was  necessary  to  reduce  the  number  of  the  house  of 
representatives.  By  the  system  now  offered  it  never  would  exceed 
275  ;  whereas,  by  the  old  system,  it  might  in  a  few  years  amount  to 
800.  The  Legislature  was  for  the  benefit  of  the  whole  State,  and 
gentlemen  from  the  small  towns  did  as  much  as  those  from  the 
large  towns.  He  agreed  that  if  the  present  system  continued,  they 
ought  to  be  paid  by  the  respective  towns,  and  this  from  necessity, 
in  order  to  check  the  number  in  the  house  of  representatives.  The 
small  towns  had  made  a  concession,  and  were  entitled  to  some 
equivalent. 

Mr.  Q,uincy  said  he  protested  against  the  bargain  proposed  by  the 
select  committee. 

Mr.  Martin  said  this  was  called  a  bargain  ;  it  was  a  bargain  he 
did  not  agree  to.  It  bargained  away  five  members  from  the  town 
of  Marblehead.  He  did  not  object  to  it  because  he  wished  to  be 
elected.  I  never  wish,  said  he,  to  have  a  seat  in  the  house,  and  I 
am  sorry  to  think  I  am  here  now.  He  was  not  able  to  follow  the 
gentleman  from  Salem  with  all  his  learning  and  eloquence,  but  if 
he  could  bring  forward  facts  to  put  down  his  arguments,  it  was  his 
duty  to  do  it.  He  proceeded  to  state  in  what  manner  the  resolu- 
tion, if  adopted,  would  operate  on  the  county  of  Essex,  particularly 
on  the  commercial  part  of  it,  and  contended  that  for  its  inequality 
it  ought  not  to  be  adopted. 

Mr.  J.  Little  of  Newbury  wished  to  know  if  the  committee  had 
any  authority  to  make  a  bargain  that  should  oblige  the  House  to 
adopt  this  resolution.  If  they  had  made  any  such  bargain  it 'was 
on  their  own  responsibility,  and  the  House  were  not  bound  by  it. 
Instead  of  diminishing  the  number  of  representatives  they  had 
increased  them,  and  they  were  to  be  paid  by  taxing  every  town  in 
the  State.  He  could  not  agree  to  it,  and  he  did  not  think  the  peo- 
ple would  agree  to  it.  He  would  not  only  give  his  voice  against  it, 
but  would  do  all  he  could  to  prevent  its  being  ratified. 

Mr.  Lincoln  said  no  man  was  more  opposed  than  he  was  to  tb.e 
system  of  representation  that  had  been  adopted  ;  he  considered  it 
unequal,  oppressive,  and  unjust,  and  he  meant  to  protest  against  it 
now  and  hereafter,  here  and  elsewhere.  But  the  House  having  seen 
fit  to  adopt  a  system  which  he  had  no  part  in,  they  were  bound  to 
make  it  complete.  Having  taken  away  the  rights  of  the  small 
towns,  they  were  bound  to  pay  the  equivalent.  The  payment  out 
of  the  treasury  was  the  only  equivalent,  and  they  were  bound  to 
pay  it. 

Mr.  Prescott  did  not  consider  it  in  the  nature  of  a  bargain  :  but 
he  did  consider  the  whole  report  of  the  committee  as  a  system, 
which  was  to  be  adopted  in  whole  or  not  at  all.  and  that  it  would  be 
unjust  to  adopt  a  part  of  it,  which  might  appear  to  be  advantageous 


518  MASSACHUSETTS    CONVENTION. 

to  one  part  of  the  State,  and  reject  another  part  of  it,  which  offered 
an  equivalent  advantage  to  the  other  parts  of  the  State. 

Mr.  S locum  said  that  he  had  much  rather  hear  than  speak,  for  he 
felt  better  instructed  when  he  was  listening  to  other  gentlemen. 
His  text  was,  that  taxation  and  representation  ought  to  go  hand  in 
hand.  The  representatives  had  frequently  come  forward  and 
wished  to  be  paid  out  of  the  public  chest.  They  last  year  passed  a 
resolve  for  this  purpose,  but  it  was  rejected  by  the  senate.  Ought 
we  not  to  hear  the  voice  of  the  people  ?  He  wanted  an  equal  tax- 
ation and  an  equal  representation,  and  then  he  should  feel  happy. 
But  it  was  not  an  equal  representation,  that  the  poor  towns,  which 
cannot  pay,  shall  have  no  representatives  unless  they  pay  them.  He 
did  not  see  where  gentlemen  built  their  argument ;  it  could  not  be 
on  equal  rights  nor  on  equal  taxation  ;  but  it  must  be  from  the 
ingenuity  of  their  own  brain.  He  should  therefore  vote  in  favor 
of  the  resolution. 

Mr.  Keyes  of  Concord  was  in  favor  of  this  resolution,  and  op- 
posed to  all  the  rest.  He  entered  his  protest  against  the  system 
relative  to  the  senate  now,  and  he  should  protest  against  it  here- 
after. 

Mr.  Blake  said  that  they  were  legislating,  not  about  representa- 
tives of  the  towns,  but  about  representatives  of  the  people  of  Mas- 
sachusetts. Ought  not  the  people  of  the  Commonwealth  to  pay 
their  own  servants  and  agents  ?  He  did  not  support  the  resolution 
on  the  ground  of  a  compromise,  but  on  the  ground  that  it  was  a 
provision  perfectly  consonant  to  sound  principle. 

Mr.  Lawrence  protested  against  the  remarks  from  various  parts 
of  the  House,  proceeding  from  the  idea  that  any  rights  were  intend- 
ed to  be  bargained  away.  There  was  nothing  in  the  resolution  by 
which  the  interests  of  the  Commonwealth,  or  the  honor  of  the 
towns  was  to  |be  compromited.  The  committee  considered  it  a 
settled  principle  that  the  number  of  representatives  should  be  re- 
duced, so  that  the  members  might  be  paid  out  of  the  public  chest 
— this  could  be  done  only  by  districting,  or  in  the  present  mode. 
This  mode  had  been  preferred  by  the  House — every  one  acquaint- 
ed with  the  course  of  business  in  the  house  of  representatives  knew, 
that  under  the  present  organization  a  great  part  of  the  members  did 
not  remain  in  their  seats  long  enough  to  render  any  service.  They 
went  home  early  in  the  session  to  save  their  towns  from  the  bur- 
den of  paying  for  their  attendance,  and  left  the  business  to  be  trans- 
acted by  the  representatives  of  a  few  towns.  This  occasioned  great 
uneasiness,  and  the  difficulty  could  never  be  remedied  but  by  pay- 
ing the  members  out  of  the  public  treasury. 

Mr.  Hoyt  said  that  the  town  which  he  represented  would  be  de- 
prived of  half  its  representation,  and  be  obliged  to  pay  for  double 
what  it  is  entitled  to.  But  he  was  in  favor  of  the  resolution,  be- 
cause he  thought  it  would  be  for  the  benefit  of  the  Commonwealth. 

Mr.  Locke  said  that  one  of  the  first  abstract  principles  decided 
by  the   select  committee,  was  that  representatives  should  be  paid 


MASSACHUSETTS    CONVENTION.  519 

out  of  the  public  chest.  This  was  before  any  plan  of  representa- 
tion was  matured,  and  was  agreed  to  almost  unanimously.  They 
were  considered  as  agents  of  the  whole  Commonwealth  ;  otherwise  it 
would  be  improper  to  fine  towns  for  neglecting  to  send  representa- 
tives. 

Mr.  Banister  considered  it  to  be  his  duty  to  his  constituents,  as 
well  as  his  right,  to  express  his  objections  to  this  resolution.  He 
agreed  that  the  expenses  of  legislation  ought  to  be  borne  by  the 
whole  State,  but  there  ought  to  be  some  equality  between  represen- 
tation and  taxation.  If  the  system  would  effect  the  object  of 
reducing  the  representation  and  the  expenses  of  government,  he 
should  be  more  reconciled  to  it.  But  it  would  have  the  effect  to 
increase  the  representation  and  the  expenses  of  government  as  well 
as  to  increase  the  inequality  of  burdens  on  the  community.  He 
stated  several  other  objections  to  the  operation  of  it  generally,  and 
explained  its  unjust  operation  on  the  county  of  Essex,  particularly 
compared  with  all  the  other  counties.  He  said  that  Essex  would 
lose  from  five  to  ten  members  compared  with  every  county  except 
Suffolk  and  Nantucket ;  and  that  all  the  counties  would  gain  except 
Suffolk,  Essex  and  Plymouth.  He  did  not  believe  that  the  people 
would  agree  to  it. 

Mr.  Parker  of  Charlestown  said  he  opposed  the  resolution 
respecting  the  senate,  but  as  they  had  been  accepted,  this  was  the 
only  counterpart.  The  senate  was  to  be  formed  upon  valuation 
and  the  house  of  representatives  upon  corporate  rights.  Neither  of 
these  was  a  representation  of  the  people,  and  the  majority  of  the 
people  might  be  governed  in  both  branches  by  a  minority  of  the 
people.  He  held  that  living,  moving,  acting,  intelligent  beings 
were  the  only  proper  basis  for  both  branches  ;  but  as  a  different  one 
had  been  adopted  for  the  senate  he  should  vote  for  this  resolution. 

Mr.  Tillinghast  of  Wrentham  said  he  washed  his  hands  of  the 
compromise.  He  had  uniformly  opposed  it,  but  this  resolution 
should  go  with  the  others  which  had  been  adopted  and  he  should 
vote  in  favor  of  it. 

The  previous  question  was  moved  and  decided  in  the  affirmative. 

A  motion  to  take  the  question  by  yeas  and  nays  was  ldst — 40  out 
of  349  voting  in  favor. 

The  question  was  then  taken  for  the  resolution  passing  to  a  second  , 
reading,  and  decided  in  the  affirmative — 2S3  to  65. 

The  fifteenth  resolution,  fixing  the  quorum  of  the  house  of  repre- 
sentatives at  100 — the  sixteenth,  giving  the  representatives  privi- 
lege from  arrest  on  mesne  process,  warrant  of  distress,  or  execution 
during  their  going  unto,  returning  from,  or  attending  the  General 
Court — and  the  seventeenth  giving  the  same  privilege  to  the  senators, 
were  severally  read  and  passed  to  a  second  reading  without  debate. 

The  resolution  offered  by  Mr.  Prescott  and  agreed  to  by  a  com- 
mittee of  the  whole,  providing  that  all  the  towns  shall  be  entitled  to 
send  a  representative  on  the  year  when  a  valuation  shall  be  settled, 
and  that  any  two  adjoining  towns  being  in  the  same  class  and  being 


520  MASSACHUSETTS    CONVENTION. 

desirous  of  belonging  to  different  classes  may  be  so  classed  upon 
application  to  the  Legislature,  was  read. 

Mr.  Sturgis  of  Boston  moved  as  an  amendment  that  the  towns 
should  pay  their  representatives  on  that  year.     Negatived. 

A  division  of  the  question  was  called  for.  The  question  then 
being  upon  the  first  branch  of  the  resolution,  some  debate  followed, 
in  which  Messrs.  Dwight,  Prescott,  Page,  Hoyt  and  Varnum 
took  part,  respecting  the  year  in  which  this  full  representation 
should  be  had,  on  account  of  the  time  necessary  to  complete  a 
valuation. 

Mr.  Bond  moved  to  postpone  the  consideration  of  the  subject 
indefinitely.     Negatived. 

The  first  part  of  the  resolution  then  passed  to  a  second  reading, 
and  on  motion  of  Mr.  Paige,  of  Hard  wick,  was  referred  in  the  mean- 
time to  a  select  committee.  Messrs.  Prescott,  Varnum,  Paige, 
Hoyt  and  Sturgis  were  appointed  on  the  committee. 

The  other  part  of  the  resolution  passed  to  a  second  reading  and 
was  in  the  mean  time  referred  to  the  same  committee. 

To-morrow,  at  10  o'clock,  was  assigned  for  the  second  reading 
of  the  various  resolutions  before  mentioned. 

On  motion  of  Mr.  Prescott  the  House  went  into  committee  of  the 
whole  on  the  resolution  submitted  by  him  for  limiting  the  number 
of  representatives,  Mr.  Varnum  in  the  chair. 

Mr.  Prescott  said  that  from  the  best  computation  he  could  make, 
the  number  of  representatives  by  the  census  of  1810,  would  be  from 
250  to  260.  By  that  of  1820  it  may  be  270.  A  strong  wish  had 
been  expressed  from  various  parts  of  the  house  that  they  should  not 
be  increased  far  above  this  number.  To  prevent  any  increase  above 
275  he  had  proposed  this  resolution.  He  proceeded  to  explain  the 
operation  of  the  resolution. 

Mr.  Bond  was  opposed  to  the  resolution.  If  he  understood  the 
effect  of  it,  it  would  tend  to  increase  the  inequality  of  the  system  as 
it  was  now  adopted.  The  mean  increasing  number  was  to  be 
increased  in  proportion  to  the  increase  of  population  in  the  Com- 
monwealth, and  this  would  increase  the  inequality  in  favor  of  the 
small  towns. 

The  question  was  taken  without  further  debate,  and  the  resolu- 
tion agreed  to — 200  to  36. 

The  committee  rose  and  reported. 

The  resolution  was  then  read  the  first  time  in  Convention  and 
passed,  and  ordered  to  a  second  reading  to-morrow  at  10  o'clock. 

On  motion  of  Mr.  Sturgis,  the  committee  on  the  pay  roll  was 
directed  to  make  it  up,  including  Monday  next. 

The  resolution  reported  by  Mr.  Dana  as  chairman  of  a  select 
committee,  that  every  male  citizen  twenty-one  years  of  age  and 
upwards  (except  paupers)  who  has  resided  in  any  town  six  months 
previous  to  an  election  for  civil  officers,  and  who  shall  have  paid  by 
himself  or  his  parent,  &c,  a  public  tax  assessed  within  two  years 
preceding,  shall  have  a  right  to  vote  at  such  election,  was  read. 


MASSACHUSETTS    CONVENTION.  521 

Mr.  Sullivan  of  Boston  moved  an  indefinite  postponement. 
Negatived. 

Mr.  Varnum  moved  to  amend  by  inserting  after  "paupers"  the 
words  "and  persons  under  guardianship."  The  amendment  was 
adopted. 

Mr.  Sullivan  moved  to  amend  so  as  to  enable  persons  to  vote 
who  shall  be  exempted  by  law  from  taxation. 

The  amendment  was  agreed  to — 215  to  25. 

Mr.  Leland  of  Roxbury  moved  to  amend  so  as  to  require  the  tax 
to  be  assessed  in  some  town  in  the  Commonwealth. 

Mr.  Lincoln,  with  the  same  view,  suggested  that  the  insertion  of 
the  word  "  therein"  would  answer  the  purpose. 

This  amendment  was  accordingly  adopted. 

Mr.  Locke  without  intending  to  alter  the  sense,  moved  to  amend 
so  that  it  should  read,  "  who  shall  have  paid  or  for  whom  any  parent, 
guardian,  &c,  shall  have  paid,"  &c. 

This  motion  was  withdrawn  upon  a  suggestion  that  the  committee 
for  reducing  the  propositions  to  form,  would  have  power  to  make 
the  alteration  desired. 

After  a  slight  debate  the  resolution  passed  to  a  second  reading 
to-morrow  at  10  o'clock. 

On  motion  of  Mr.  Alvord  of  Greenfield  the  resolution  offered  by 
Mr.  Prescott,  which  had  been  discussed  in  committee  of  the  whole 
and  disagreed  to,  providing  that  two  towns  containing  each  less 
than  1200  inhabitants,  might  unite  for  the  purpose  of  choosing  a 
representative  every  year,  was  read.  After  debate,  in  which  Messrs. 
Alvord,  Dana,  Newhall,  Prescott,  Sturgis  and  J.  Baldwin  spoke 
in  favor  of  the  principle,  and  Mr.  Prazer  against  it,  the  Convention 
disagreed  to  the  report  of  the  committee  of  the  whole.  The  resolu- 
tion passed  to  a  second  reading  to-morrow  at  10  o'clock,  and  was 
committed  in  the  mean  time  to  the  same  select  committee  to  whom 
the  other  resolutions  connected  with  this  subject  were  committed. 

A  resolution  was  offered  that  it  is  expedient  to  alter  the  constitu- 
tion so   as  to  provide  that  printed  ballots  may  be  used  at  elections. 

Mr.  Dearborn  of  Roxbury  said  this  question  was  discussed  in  the 
select  committee  on  the  senate,  &c,  and  it  Avas  thought  inexpedient 
to  make  the  alteration,  as  printed  votes  would  be  liable  to  be  abused 
by  making  caricatures  and  other  things  of  that  sort  upon  them. 

A  motion  to  commit  the  resolution  to  a  committee  of  the  whole 
was  negatived. 

On  motion  of  Mr.  Story  the  Convention  proceeded  to  the  second 
reading  of  the  resolution  relating  to  the  judiciary. 

The  first  resolution  as  amended  was  read. 

Mr.  Childs  said  he  thought  that  by  adopting  the  amendment,  the 
intention  of  the  provision  for  removal  of  judges  by  address  of  the 
two  houses  would  be  done  away.  It  placed  this  proceeding  on  the 
footing  of  impeachment,  and  it  might  as  well  be  struck  out.  The 
object  in  giving  the  power  to  the  Legislature  was,  that  judges  might 
be  removed  when  it  was  the  universal  sentiment  of  the  community 
66 


522  MASSACHUSETTS    CONVENTION. 

that  they  were  disqualified  for  the  office,  although  he  could  not  be 
convicted  on  impeachment.  He  hoped  that  this  part  of  the  consti- 
tution would  be  suffered  to  remain  unaltered. 

Mr.  Austin  of  Boston  thought  the  alteration  was  unnecessary,  and 
might  be  mischievous.  No  injury  had  arisen  under  the  provision. 
There  had  been  unpopular  decisions  of  the  courts,  which  affected 
the  great  mass  of  the  people,  and  produced  great  sensation,  but  they 
were  cheerfully  submitted  to,  and  no  harm  came  to  the  judges. 
They  were  secured  by  a  strong  popular  feeling — amoral  restraint — 
a  good  feeling  on  the  part  of  the  enlightened  community,  which 
placed  them  above  danger  from  any  popular  excitement.  It  had 
been  suggested  that  it  might  become  an  object  to  individuals  of  in- 
fluence to  obtain  the  office  of  judge.  Such  an  attempt  could  not 
succeed.  The  man  who  would  solicit  the  office,  and  would  attempt 
to  turn  out  the  incumbent  to  obtain  his  place,  would  not  retain  the 
countenance  and  support  of  any  party.  By  the  constitution,  judges, 
like  all  other  officers,  are  subjected  to  punishment  for  great  crimes 
by  impeachment.  Nobody  objects  to  this  provision.  The  house 
of  representatives  is  the  grand  inquest — they  are  tried  by  the  senate 
and  have  the  right  of  being  heard.  But  the  constitution  admits 
that  there  may  be  cases  in  which  judges  may  be  removed  without 
supposing  a  crime.  But  how  is  it  to  be  done  by  this  resolution  ? — 
there  are  to  be  two  trials,  when  for  the  greater  charge  of  a  high 
crime  he  has  only  one.  It  so  obstructs  the  course  of  proceeding 
that  it  will  never  be  used.  He  would  suppose  the  case  not  of  men- 
tal disability — but  the  loss  of  public  confidence.  He  knew  that 
such  cases  were  not  to  be  anticipated.  But  he  would  look  to  times 
when  the  principle  might  be  brought  into  operation — when. the 
judge  by  indulging  strong  party  feelings,  or  from  any  other  cause, 
should  so  far  have  lost  the  confidence  of  the  community  that  his 
usefulness  should  be  destroyed.  He  ought  in  such  case  to  be 
removed,  but  if  witnesses  were  to  be  summoned  to  prove  specific 
charges,  it  would  be  impossible  to  remove  him.  A  man  may  do  a 
vast  deal  of  mischief  and  yet  evade  the  penalty  of  the  law — a  judge 
may  act  in  such  a  manner  that  an  intelligent  community  may  think 
their  rights  in  danger,  and  yet  commit  no  offence  against  any  written 
or  unwritten  law.  Men  are  more  likely  to  act  in  such  manner  as 
to  render  themselves  unworthy  to  be  trusted,  than  so  as  to  subject 
themselves  to  trial.  The  great  argument  for  the  amendment  is,  that 
it  is  necessary  to  secure  the  independence  of  the  judiciary.  He  was 
in  favor  of  the  principle,  but  it  had  its  limitations.  While  we  se- 
cure the  independence  of  the  judges,  we  should  remember  that  they 
are  but  men,  and  sometimes  mere  partisans.  He  had  heard  of  men 
being  elevated  to  high  judicial  stations,  not  because  they  were  the 
most  able  and  the  most  learned,  but  because  they  stood  in  the  front 
ranks  of  their  party.  They  are  but  men,  and  ought  not  to  be  above 
responsibility.  It  was  urged  as  a  reason  for  their  entire  indepen- 
dence, that  they  are  called  on  to  decide  on  the  constitutionality  of 
acts  of  the  Legislature.     He  admitted  that  they  had  this  right  and 


MASSACHUSETTS    CONVENTION.  523 

that  it  was  an  indispensable  check  on  the  Legislature.  But  was 
there  to  be  no  check  on  the  judiciary :  were  they  elevated  to  an 
atmosphere  in  which  they  would  have  none  of  the  prejudices  and 
strong  feelings  of  other  men  ?  This  power  of  removal  was  the  neces- 
sary check  on  the  judiciary. '  It  was  urged  that  the  judiciary  ought  to 
be  supported  because  it  was  the  feeblest  of  the  three  departments  of 
the  government.  He  was  astonished  to  hear  this  argument.  He 
had  considered  it  the  strongest.  It  was  the  strongest  from  the  du- 
ration of  the  office  of  the  judges:  from  the  power  they  exercise,  a 
power  which  comes  home  to  men's  business  and  bosoms.  A  man 
might  bear  for  a  little  while  with  tyrannical  laws,  and  a  tyrannical 
executive,  but  no  man  could  bear  a  judiciary  power  that  was  not 
honest  and  upright,  however  distinguished  by  learning.  The  court 
were  besides  attended  by  a  splendid  and  powerful  retinue — the  bar. 
They  have  great  influence  from  their  talents,  learning,  and  esprit 
du  corps,  and  as  an  appendage  to  the  court  they  give  them  a  great 
and  able  support.  He  did  not  admit  that  the  judiciary  was  a  weak 
branch  of  the  government,  but  on  the  contrary  it  was  a  strong 
branch.  We  had  been  told  that  the  best  experience  was  our  own 
experience.  This  had  been  in  favor  of  the  principle  as  it  stands  in 
the  constitution.  It  was  also  the  English  principle,  which  was  con- 
sidered the  best  organized  judiciary  that  humanity  would  permit. 
It  was  not  that  of  the  constitution  of  the  United  States,  but  the 
nature  of  the  government  was  different.  These  were  his  general 
reasons  for  opposing  this  innovation  on  the  constitution. 

Mr.  Prince  of  Boston  said  that  after  the  decided  majority  of  this 
House  in  favor  of  the  resolution  which  he  had  had  the  honor  to 
submit,  he  had  not  expected  to  hear  it  called  "  mischievous  pro- 
vision." He  considered  the  independence  of  the  judiciary  the  key 
stone  of  our  republican  institutions.  He  thought  the  single  admis- 
sion of  the  gentleman  last  speaking,  that  the  judges  have  power  to 
declare  an  act  of  the  Legislature  unconstitutional,  furnished  a  suffi- 
cient argument  against  leaving  it  to  the  will  of  a  majority  of  the 
Legislature  to  remove  them  from  office  ;  for  the  exercise  of  this 
power  in  relation  to  a  favorite  law,  would  be  sure  to  lead  to  a  resolve 
for  their  removal.  As  the  judges  are  men  of  the  first  respectability, 
proverbial  for  their  integrity  and  unblemished  character,  they  ought 
to  receive  as  much  attention,  and  be  indulged  with  the  same  right 
of  being  heard  which  is  extended  to  the  most  unfortunate  class  of 
our  fellow-citizens. 

Mr.  Story  was  aware  of  the  impatience  of  the  House,  and  he 
would  not  rise  if  there  were  not  some  circumstances  which  he 
thought  rendered  it  indispensable  he  should  say  a  few  words  on  this 
question.  Circumstances  in  the  order  of  providence  had  rendered 
it  necessary  that  he  should  be  absent  at  the  time  when  the  report  of 
the  select  committee  was  under  discussion.  It  was  his  misfortune 
also  to  be  absent  when  the  gentleman  who  last  spoke  against  the 
amendment  had  seen  fit  on  a  former  occasion  to  make  an  allusion 
to  him  personally,  in  terms  so  distinct   that  they  could   not  be  mis- 


524  MASSACHUSETTS    CONVENTION. 

understood.  He  wished  the  gentleman  to  know  that  he  understood 
the  allusion,  but  he  did  not  mean  to  reply.  He  wished  it  to  be  un- 
derstood that  in  entering  this  house  he  deposited  at  the  door  every 
feeling  of  private  interest  or  resentment,  and  he  regretted  that  any 
gentleman  should  think  it  his  duty  in  debate  to  make  a  personal 
allusion,  when  the  individual  alluded  to,  was  not  present.  He 
should  be  still  more  sorry  if  any  gentleman  should  permit  his  mind 
to  be  so  disturbed  by  private  resentments  as  to  permit  the  constitution 
to  be  stained  by  a  provision  growing  out  of  those  resentments.  He 
would  not  decline  at  a  proper  time  and  in  a  fit  place  attempting  to 
defend  the  little  reputation  he  had — it  was  what  he  had  a  right  to 
defend  and  he  ought  to  defend,  but  this  was  not  the  place.  He 
wished  in  that  house  to  be  considered  without  regard  to  his  official 
station,  and  as  standing  in  a  capacity  entirely  distinct  from  the 
character  of  the  judge.  The  report  of  the  select  committee  pro- 
posed to  substitute  for  "a majority"  of  each  house,  required  to  unite 
in  an  address  for  the  removal  of  a  judicial  officer,  "two  thirds." 
The  object  of  the  amendment  was  to  secure  the  judges  from  a 
temporary  excitement,  operating  on  the  Legislature.  It  was  not  to 
protect  them  against  the  people,  but  against  the  representatives  of 
the  people.  But  the  House  had  overruled  the  proposition,  and  he 
should  make  no  objection  to  it.  He  should  always  submit  cheer- 
fully to  the  decision  of  the  House,  though  it  should  be  opposed  to 
his  own  opinion.  The  able  argument  that  had  been  addressed  to 
the  House  against  the  amendment  of  the  committee  of  the  whole, 
for  he  could  listen  to  an  argument  against  him,  though  he  did  not 
always  experience  the  same  indulgence,  all  went  to  show  that  the 
judges  ought  not  to  be  liable  to  removal  by  a  bare  majority  of  the 
two  houses  of  the  Legislature.  It  was  said  that  the  judges  should 
hold  their  offices  during  good  behavior — the  terms  were  so  in  the 
constitution — but  while  another  clause  of  the  constitution  remained, 
the  fact  was  not  so.  The  governor  and  council  might  remove  them 
on  the  address  of  a  majority  of  the  Legislature,  not  for  crimes  and 
misdemeanors,  for  that  was  provided  for  in  another  manner,  but  for 
no  cause  whatever — no  reason  was  to  be  given.  A  powerful  indi- 
vidual, who  has  a  cause  in  court  which  he  is  unwilling  to  trust  to 
an  upright  judge,  may,  if  he  has  influence  enough  to  excite  a  mo- 
mentary prejudice,  and  command  a  majority  of  the  Legislature, 
obtain  his  removal.  He  does  not  hold  the  office  by  the  tenure  of 
good  behavior,  but  at  the  will  of  a  majority  of  the  Legislature,  and 
they  are  not  bound  to  assign  any  reason  for  the  exercise  of  their 
power.  Sic  volo,  .sir  jiibeo,  stet  pro  ratione  voluntas.  This  is  the 
provision  of  the  constitution,  and  it  is  only  guarded  by  the  good 
sense  of  the  people.  He  had  no  fear  of  the  voice  of  the  people 
when  he  could  get  their  deliberate  voice — but  he  did  fear  from  the 
Legislature,  if  the  judge  has  no  right  to  be  heard.  It  was  said  we 
had  had  good  judges  under  this  provision,  and  that  they  had  not 
been  removed.  He  admitted  it — he  apprehended  no  evil  for  the 
present — but  begged   gentlemen    not    to    deceive   themselves — the 


MASSACHUSETTS     CONVENTION.  525 

first  instance  of  removal  would  establish  a  practice  which  would 
never  be  departed  from,  of  shifting  the  whole  court  with  every 
change  of  the  party  in  power.  Why  had  this  evil  never  yet  been 
felt  ?  He  did  not  wish  to  allude  to  parties  that  had  existed,  but  he 
must  allude  to  facts.  For  forty  years  past  it  had  so  happened  that 
the  judges  had,  except  for  a  few  years,  always  agreed  with  the  party 
in  power.  It  was  not  when  they  were  of  the  same  opinions  of  the 
majority  of  the  Legislature  that  there  was  any  danger,  but  when 
they  were  with  the  minority.  It  is  always  the  great  object  of  the 
majority  to  weaken  the  minority,  and  this  provision  puts  it  in  the 
power  of  the  majority  to  remove  every  judge  opposed  to  them.  It 
is  the  minority  who  are  interested  in  the  independence  of  the 
judges.  Is  there  no  danger  that  if  they  are  made  dependent  on  the 
will  of  the  majority,  they  will  be  complaisant  to  that  majority  at 
the  expense  of  the  minority  ?  that  the  right  of  the  poor  man  will 
be  in  danger,  when  opposed  to  the  interests  of  the  powerful  man  in 
the  majority  ?  He  referred  to  the  example  of  a  neighboring  state, 
in  which  three  whole  benches  of  judges  had  been  removed  in  the 
space  of  three  or  four  years ;  and  to  the  experience  of  certain  other 
states,  (not  within  this  circuit,)  where,  from  the  dependence  of  the 
judges,  justice  is  not  impartially  administered,  and,  in  consequence, 
instances  have  frequently  happened  of  citizens  being  obliged  to 
escape  to  a  neighboring  state,  to  give  them  a  right  to  the  courts  of 
the  United  States.  Was  the  provision  adopted  in  committee  of  the 
whole  unreasonable  ?  The  bill  of  rights  secures  to  every  subject, 
however  humble,  the  privilege  of  not  being  held  to  answer  for  any 
offence  until  it  has  been  fully  and  plainly  described  to  him — and 
the  right  to  produce  proof  in  his  defence — to  meet  the  witnesses 
against  him  face  to  face — and  to  be  fully  heard  in  his  defence  by 
himself  or  his  council.  The  rights  of  the  humblest  citizen  cannot 
be  touched  without  giving  him  the  opportunity  to.  hear  the  charge 
and  to  make  his  defence,  and  should  this  right  be  denied  to  the 
judge  ?  It  might  be  said  that  it  was  not  his  property,  or  liberty  or 
life  that  was  in  question — but  it  was  something  dearer — it  was 
character.  If  this  was  to  be  taken  away,  let  it  be  done  openly — if 
they  must  perish,  let  it  be  in  the  face  of  day,  and  in  the  presence 
of  those  who  attack.  Let  not  the  reputation  of  the  judge,  who 
has  spent  his  whole  life  in  labor  and  study,  whose  youth  and  old 
age  has  been  devoted  to  the  public  service,  be  taken  away  at  the 
beck  of  a  popular  demagogue,  and  not  let  his  children  have  the 
means  of  knowing  the  cause,  which  they  who  do  the  injury  would 
blush  to  tell.  After  a  single  removal  had  been  made,  no  man  wor- 
thy of  the  place  would  accept  the  charge.  He  considered  it  a 
matter  of  immense  importance  that  the  judges  should  be  inde- 
pendent. A  republican  government  can  never  subsist  without  it  : 
but  while  the  judiciary  is  independent,  the  republic  can  never  be 
in  danger,  and  those  who  would  destroy  it  must  undermine  not  only 
the  public  confidence  in  the  judiciary  but  the  tenure  of  office. 
There  had   been  an  allusion  to  the  practice  of  England.     Mr.  S. 


526  MASSACHUSETTS    CONVENTION. 

proceeded  to  give  the  history  of  the  act  of  William  III,  by  which 
the  judges  of  the  courts  of  England  are  removable  only  by  address 
of  the  two  houses  of  parliament,  and  before  which  they  were  de- 
pendent on  the  will  of  the  king  ;  and  to  show  that  the  object  of 
the  act  was  not  to  give  power  to  parliament  to  remove  the  judges, 
but  to  induce  the  king,  by  a  compromise,  to  give  up  a  greater  right. 
Since  this  act,  which  was  one  of  the  most  valuable  fruits  of  the 
revolution,  the  courts  of  England  had  stood  in  an  attitude  which 
commanded  the  admiration  of  the  whole  world.  He  alluded  to  the 
recent  trial  of  the  queen  in  England,  to  show  the  value  of  an  ex- 
hibition of  specific  charges  and  a  public  hearing,  and  asked  whether, 
if  the  green  bag  had  been  opened  before  a  secret  committee,  it 
could  be  supposed  there  would  have  been  the  same  result.  There 
was  not  a  man  in  England  bold  enough  to  say  that  the  queen, 
whether  guilty  or  not,  should  be  unqueened  without  being  heard. 
And. should  we  in  this  republican  government  suffer  men,  holding 
the  highest  stations  in  society,  to  be  removed  from  their  offices, 
with  the  loss  of  reputation,  without  even  knowing  the  cause  of  then- 
removal  ?  He  considered  it  indispensable  to  preserve  their  inde- 
pendence, not  only  with  reference  to  their  own  rights,  but  with 
reference  to  the  rights  of  the  minority  and  the  rights  of  the  people. 
The  amendment  agreed  to  in  committee  of  the  whole  afforded  but 
a  reasonable  security  for  this  independence,  and  he  trusted  it  would 
be  suffered  to  become  a  part  of  the  constitution. 

Mr.  Austin  moved  that  the  House  adjourn — Negatived. 

Mr.  Sturgis  called  for  the  previous  question,  which  was  put  and 
carried. 

The  question  was  then  taken  on  the  resolution  and  it  passed — 
221  to  3. 

The  other  resolutions  relating  to  the  judiciary,  were  read  and 
passed. 

Leave  of  absence  was  granted  to  Messrs.  Rice  of  Marlborough, 
Leonard  of  Taunton,  Bliss  of  Wilbraham,  Trask  of  Brimfield, 
Fowler  and  Taylor  of  Westfield,  Bourne  of  Wareham,  Newhall 
of  Attleborough,  and  Gifford  of  Westport. 

The  House  adjourned. 


Thursday,  January  4. 

The  House  was  called  to  order  at  twenty  minutes  before  10 
o'clock,  and  attended  prayers  by  the  Rev.  Mr.  Palfrey.  The  jour- 
nal of  yesterday  was  then  read. 

Mr.  Jackson  of  Boston,  chairman  of  the  committee  for  reducing 
amendments  into  form,  reported  several  resolutions  respecting  the 
manner  in  which  the  amendments  should  be  submitted  to  the 
people. 

Mr.  Jackson  said  the  resolutions  were  the  same  in  substance  and 
differed  very  little  in  words  from  the  resolutions  formerly  reported 


MASSACHUSETTS    CONVENTION.  527 

by  him  on  the  same  subject  :  and  which  we  have  before  given  in 
the  proceedings  of  December  6th.  In  conformity  to  an  order  of  the 
Convention  passed  on  Monday  last,  he  also  reported  some  amend- 
ments reduced  to  form,  in  relation  to  the  subjects  referred  to  the 
standing  committees  on  oaths,  subscriptions,  &c,  on  the  secretary, 
treasurer,  &c,  and  on  the  governor,  militia,  &c.  As  we  have  already 
given  the  substance  of  these  amendments  as  they  were  from  time  to 
time  adopted  by  the  Convention,  we  shall  defer  publishing  them 
again  until  all  the  amendments  shall  be  agreed  upon  and  reduced  to 
form  :  in  order  that  we  may  present  them  all  at  the  same  time,  ac- 
companied with  the  resolutions  before  mentioned  reported  to-day 
by  Mr.  Jackson. 

Mr.Q,uiNCY  wished  the  resolutions  might  lie  on  the  table,  to 
give  gentlemen  an  opportunity  to  examine  them.  They  contained 
one  provision,  which  appeared  to  him  to  be  objectionable,  for  ap- 
pointing a  committee  of  the  Convention  to  meet  and  examine  the 
returns  of  votes  given  by  the  people  upon  the  amendments.  He 
doubted  the  power  of  the  Convention  to  appoint  such  a  committee. 
The  governor  and  council  were  the  proper  persons  for  examining 
the  returns ;  they  were  responsible  persons.  A  committee  of  the 
Convention,  though  they  might  act  fairly  and  honorably,  would  not 
be  responsible  to  anybody  after  the  Convention  was  dissolved. 

Mr.  Q,uincy  offered  a  resolution  that  in  taking  the  yeas  and  nays 
the  name  of  no  person  who  had  had  leave  of  absence  should  be 
called,  unless  he  first  surrendered  his  leave  of  absence.  Laid  on  the 
table. 

Mr.  Prescott  of  Boston,  chairman  of  the  select  committee  to 
whom  the  resolution  respecting  the  small  towns  being  represented 
on  the  year  when  a  valuation  is  to  be  settled,  and  another  resolution 
respecting  small  towns  uniting  to  choose  a  representative  every 
year,  were  yesterday  committed  after  the  first  reading,  reported  the 
former  resolution  without  any  amendment,  and  the  latter  in  a  new 
draft. 

Mr.  Webster  of  Boston,  chairman  of  the  committee  to  whom  the 
subject  was  committed,  made  the  following  report,  viz.: 

In  Convention,  January.  4,  1821. 

The  committee  appointed  to  inquire  into  and  report  upon  the  Constitutional  Rights 
and  Privileges  of  the  Corporation  of  Harvard  College  ;  and  to  report  also  an  account 
of  the  donations  which  have  been  made  to  that  corporation  by  the  Commonwealth  ; 
ask  leave  now  to  report: 

That,  in  the  year  one  thousand  six  hundred  and  thirty-six,  the  General  Court  of 
the  Colony  agreed  to  appropriate  £400  towards  a  school  or  college.  In  the  year 
following,  it  was  ordered  that  an  edifice  should  be  erected  for  that  purpose  at  New- 
ton, and  twelve  gentlemen  were  appointed  a  committee  to  have  charge  of  the  subject. 
In  1638,  the  name  of  Newton  was  changed  to  that  of  Cambridge  ;  and  it  was  ordered 
that  the  College  to  be  erected  at  Cambridge,  should  be  called  Harvard  College,  in 
honor  of  the  Rev.  John  Harvard  of  Charlestown,  who  had  contributed  liberally  to  the 
fund.  And  in  lli40,  the  Rev.  Henry  Dunster  was  appointed  first  president  At  this 
time  the  property  appropriated  to  the  support  of  the  College,  by  the  General  Court, 
had  not  been  vested  in  any  person  whatever.  It  remained  the  property  of  the  Colony, 
and  was  managed  by  a  committee  of  the  General  Court,  or  by  the  magistrates  and 
elders,  by  authorityof  the  General  Court.     This  being  found  an  inconvenient  mode 


528  MASSACHUSETTS     CONVENTION. 

of  administering  the  fund,  an  act  was  passed  in  1642,  by  which  the  governor,  deputy 
governor  and  magistrates,  and  the  teaching  elders  of  the  towns  of  Cambridge, 
Watertown,  Charlestown,  Boston,  Roxbury  and  Dorchester,  together  with  the  presi- 
dent of  the  College,  were  constituted  a  board  of  overseers,  with  power  to  make  orders, 
statutes,  and  constitutions  for  the  rule  and  government  of  the  College,  and  to  manage 
and  dispose  of  its  lands  and  revenues.  The  fund  remained  in  this  situation  until  the 
year  1650,  when  the  General  Court  on  the-  application  of  the  president  granted  a 
charter,  by  which  seven  persons,  to  wit,  the  president  of  the  College  and  the  treasurer, 
ex-qfficio,  and  five  individuals  by  name,  were  constituted  a  corporation,  by  the  name  of 
the  "  President  and  Fellows  of  Harvard  College,"  to  have  perpetual  succession,  and 
with  power  to  fill  vacancies,  occurring  in  their  own  body,  by  their  own  election,  with 
the  consent  of  the  overseers.  All  powers  of  government,  the  whole  management  and 
control  of  the  property  and  funds,  and  direction  and  instruction  of  the  students, 
appear  by  this  charter  to  have  been  conferred  on  the  president  and  fellows  ;  with  a 
provision,  however,  that  the  acts  of  the  corporation  should  not  take  effect  until  the 
approbation  or  assent  of  the  overseers  was  obtained. 

It  appears  soon  to  have  been  found  that  a  great  inconvenience  arose  from  holding 
all  orders,  by-laws  and  acts  of  the  corporation  in  suspense,  until  the  pleasure  of  the 
overseers  could  be  known ;  and  on  that  account,  on  ttte  application  of  the  overseers, 
a  supplemental  charter  was  granted,  in  1657,  by  which  all  orders,  by-laws  and  other 
acts  of  the  president  and  fellows  were  to  have  immediate  force  and  effect ;  subject, 
however,  to  be  reversed  or  rescinded  by  the  overseers,  if  they  should  not  approve 
them.  By  these  charters,  all  the  property,  appertaining  to  the  College,  became 
vested  in  the  president  and  fellows,  for  the  purposes  of  the  institution  ;  and  all  pow- 
ers of  superintendence  and  control  were  in  like  manner  conferred  on  them,  subject, 
as  before  mentioned,  to  the  approbation  or  disapprobation  of  the  overseers.  The 
government  of  the  colony  Avas  the  founder  of  this  institution;  not  in  consequence  of 
having  granted  the  charter,  but  in  consequence  of  having  made  the  first  endowment. 
As  founder,  it  was  entirely  competent  to  the  government  to  prescribe  the  terms  of  the 
charter,  to  grant  the  property,  subject  to  such  limitations  as  it  saw  fit,  and  to  vest  the 
power  of  visitation  and  control,  wherever  it  judged  most  expedient.  This  power,  the 
government  thought  proper  to  vest,  to  the  extent  and  in  the  manner  before  mentioned, 
in  the  board  of  overseers  ;  and  subsequent  donors  had  a  right,  of  course,  to  expect  that 
donations,  made  by  them,  would  be  managed,  and  applied  to  their  intended  objects,  by 
the  College  government,  thus  constituted,  without  substantial  variation.  Between  the 
year  1657,  (the  date  of  the  supplemental  charter)  and  the  time  of  the  provincial  charter 
of  William  and  Mary,  sundry  alterations  were  proposed  in  the  charter  of  the  College  ; 
such  as,  among  other  things,  to  give  to  the  College  government  civil  jurisdiction  in 
certain  cases,  after  the  manner  adopted  in  other  institutions.  None  of  these  alterations, 
however,  took  place.  By  the  provincial  charter,  in  1691,  the  crown  of  England  con- 
firmed to  the  College,  as  well  as  to  other  bodies,  corporate  and  politic,  all  its  property, 
powers,  rights,  privileges  and  immunities.  At  subsequent  periods,  attempts  were  again 
made,  for  further  alterations  of  the  charter,  but  without  success. 

By  the  present  constitution  of  the  Commonwealth,  adopted  in  1 780,  it  is  well  known, 
all  the  powers,  authorities,  rights,  liberties,  and  immunities  of  the  College  were  ex- 
pressly confirmed  ;  and  all  gifts,  devises  and  legacies,  made  or  given  to  it,  declared 
to  be  forever  bound  and  applied  to  their  respective  purposes,  according  to  the  will  of 
the  donors.  And,  inasmuch  as  the  revolution  and  the  establishment  of  a  new  gov- 
ernment had  made  it  necessary  to  declare  who  should  be  deemed  successors  to  those 
persons  who,  under  the  old  government,  had  been,  ex-qfficio,  members  of  the  board 
of  overseers,  it  was  declared  that  the  governor,  lieutenant  governor,  council  and 
senate,  should  be  such  successors ;  and  that  they,  with  the  president  of  the  College, 
and  the  ministers  of  the  Congregational  churches,  in  the  towns  of  Cambridge.  Water- 
town,  Charlestown,  Boston,  Roxbury  and  Dorchester,  should  constitute  the  board  of 
overseers  ;  with  a  provision,  that  the  Legislature  might,  nevertheless,  for  the  advan- 
tage of  the  College  and  the  interest  of  letters,  make  alterations  in  its  government,  in 
the  same  manner  as  they  might  have  been  made  by  the  provincial  Legislature.  In 
the  constitution  of  the  corporation  no  change  has  been  made  since  the  date  of  the 
first  charter ;  but  within  the  last  ten  years,  several  laws  have  passed,  having  for  their 
object  modifications  of  the  constitution  of  the  board  of  overseers.  Some  of  these 
laws  have  passed  with  the  assent,  and  on  the  application  of  the  corporation  andboird 
of  overseers  ;  and  one  of  them  has  passed  without  the  previous  consent  of  either. 
The  last  law  on  this  subject  is  the  act  of  February,  1814,  which  passed  with  an  ex- 


MASSACHUSETTS    CONVENTION.  52iJ 

press  provision,  that  its  validity  should  depend  on  the  assent  of  the  board  of  over- 
seers, and  of  the  corporation.  Both  of  these  bodies  assented  to,  and  accepted  this 
act,  and  the  present  actual  government  of  the  College  is  conformable  to  its  provis- 
ions. It  may  be  useful  to  state  here,  how  the  government  of  the  College  is  at  pres- 
ent formed  and  constituted,  under  this  law. 

In  the  first  place  then,  the  corporation,  as  before  mentioned,  exists  in  the  form 
prescribed  by  the  first  charter. 

It  consists  of  seven  members ;  it  invests  the  revenues,  protects  the  property,  and 
has  the  immediate  charge  of  the  interests  of  the  College ;  and  it  appoints  professors, 
tutors,  and  other  officers  ;  subject,  however,  in  all  these  appointments,  to  the  appro- 
bation or  disapprobation  of  the  board  of  overseers.  The  board  of  overseers  is  com- 
posed of  the  governor,  lieutenant  governor,  council,  senate,  speaker  of  the  house  of 
representatives,  and  president  of  the  College,  together  with  fifteen  ministers  of  Con- 
gregational churches,  and  fifteen  laymen,  all  inhabitants  within  this  State,  elected, 
and  to  be  elected,  as  vacancies  occur,  by  the  board  itself.  If  the  contemplated  ar- 
rangement, as  to  the  number  of  senators  and  counsellors  hereafter  to  be  chosen  in 
the  State,  shall  take  place,  this  board  will  consist  of  seventy  seve.n  members;  of 
whom  forty-six  will  be  such  persons  as  shall  be  annually  chosen  by  the  people,  into 
the  offices  of  governor,  lieutenant  governor,  counsellors,  senators,  and  speaker  of  the 
house  of  representatives  ;  and  thirty  other  persons,  such  as  these  officers,  being  them- 
selves a  majority  of  the  board,  shall,  with  the  other  members,  see  fit,  from  time  to 
time,  to  elect,  to  fill  the  vacancies  which  may  occur. 

Such  is  the  existing  constitution  of  the  government  of  this  institution  ;  and,  with 
one  exception,  hereafter  to  be  mentioned,  the  committee  are  of  opinion  that  it  is  a 
well  contrived  and  useful  form  of  government.  The  corporation  consists  of  but  tew 
persons  ;  they  can,  therefore,  assemble  frequently,  and  with  facility,  for  the  transac- 
tion of  business,  either  regular  or  occasional.  The  board  of  overseers,  having  a  neg- 
ative on  the  more  important  acts  of  the  corporation,  is  a  large  and  popular  body,  a 
great  majority  of  its  members  being  such  as  are  annually  elected  to  places  of  the 
highest  trust  in  the  government  by  the  people  themselves.  A  more  effectual  control, 
over  the  proceedings  of  the  corporation,  cannot  be  desired. 

Indeed  if  a  new  government  were  now  to  be  framed,  for  an  University  independent 
of  all  considerations  of  existing  rights  and  privileges,  the  committee  do  not  know 
that  a  better  system  could  probably  be  devised.  The  history  and  present  state  of  the 
institution  speak  the  most  decisively,  as  well  on  the  plan  of  its  government,  as  on 
its  administration.  As  to  the  care  and  management  of  the  funds,  it  is  believed  to 
have  been  cautious  and  exact,  in  a  very  high  degree.  No  delinquency,  to  the  amount 
of  a  single  shilling,  is  known  to  have  existed  in  any  member  of  the  corporation,  or  any 
of  their  agents  or  servants,  from  the  time  of  the  first  donation,  in  sixteen  hundred 
and  thirty-six,  to  the  present  moment. 

How  far  this  government  of  the  University  has  been  found  competent  to  conduct 
its  literary  concerns,  and  to  what  respectability  and  distinction,  among  the  institutions 
of  the  country,  it  has  raised  it,  neither  the  members  of  this  Convention,  nor  the  citi- 
zens of  this  Commonwealth,  nor  the  people  of  the  United  States,  need  be  informed. 

The  exception  before  alluded  to,  is  that,  by  which  the  clergymen,  composing  part 
of  the  board  of  overseers,  are  to  be  elected  from  Christians  of  a  particular  denomina- 
tion. However  expedient,  or  indeed  however  necessary,  this  might  have  been  origi- 
nally, the  committee  are  of  opinion  that  no  injury  would  arise  from  removing  the  limi- 
tation, and  that  such  a  measure  would  be  satisfactory.  It  seems  to  have  been  taken 
for  granted,  that  the  Legislature,  with  the  consent  of  the  corporation  and  overseers, 
had  power  to  modify  the  constitution  of  the  board  of  overseers,  in  the  manner  pre- 
scribed by  the  act  of  1814.  In  the  opinion  of  the  committee,  however,  modifications 
of  the  government  of  this  most  important  institution  should  not  rest  merely  on  the 
authority  of  legislative  acts.  Those  who  formed  the  constitution  in  1780,  appear  to 
have  deemed  the  subject  of  such  high  importance  as  to  require  constitutional  provis- 
ions, and  the  committee  are  of  opinion  that  that  precedent  is  tit  to  be  followed.  They 
have,  therefore,  deemed  it  proper  to  recommend  to  the  Convention  to  propose  an 
article  to  the  constitution,  removing  the  restriction  before  mentioned,  and  confirming, 
in  all  other  respects,  the  existing  constitution  of  the  College.  Having  communicated 
this  opinion  to  the  corporation,  and  to  the  board  of  overseers,  both  these  bodies  have 
signified  their  consent  to  such  an  article  ;  as  may  be  seen  by  their  votes,  certified 
copies  of  which  accompany  this  report. 

The  committee  have  no  further  remarks  to  make  on  the   constitutional   rights  and 
07 


530  MASSACHUSETTS    CONVENTION. 

privileges  of  the  College,  except  that,  like  all  other  charities,  it  is  under  the  dominion 
and  control  of  the  law.  All  officers  and  servants  of  any  institutions,  whether  estab- 
lished for  the  purpose  of  religion,  or  learning,  or  the  relief  of  the  indigent,  are  an- 
swerable for  a  strict  and  faithful  execution  of  their  trust.  And  any  individual,  who 
may  be  injured,  has  his  remedy,  as  promptly  as  in  other  cases  of  injury.  Or  if  any 
abuse,  or  perversion  of  the  funds,  be  known  or  suspected,  a  full  account  may  be 
called  for,  and  ample  justice  administered,  in  the  tribunals  of  the  country.  The 
committee  make  this  remark,  in  order  that  there  need  exist  no  jealousy  in  the  public 
towards  any  charitable  institutions  in  the  State,  arising  from  an  apprehension  that 
there  is,  or  can  be,  any  immunity  in  such  institutions,  for  mal-administration,  any  con- 
cealment of  their  transactions,  any  unseen  or  unknown  mismanagement  of  their  prop- 
erty, or  any  exemption  from  a  full  and  perfect  legal  responsibility  for  all  their  conduct. 

The  committee  now  proceed  to  the  second  object  of  their  appointment ;  which  was 
to  obtain  an  account  of  the  donations  which  have  been  made  to  the  College,  by  the 
Commonwealth ;  and  although  not  within  the  letter  of  their  instructions,  the  com- 
mittee have  thought  fit  to  inquire  into  those  other  aids,  besides  immediate  donations, 
which  the  College  has  received  from  the  State  ;  and  also  into  the  proportion  which 
the  public  grants  bear  to  private  and  individual  donations. 

The  committee,  in  making  this  inquiry,  have  conferred  with  the  president,  the 
treasurer,  and  another  member  of  the  corporation,  as  a  committee  of  that  board,  at- 
tending at  the  request  of  the  committee  ;  and  from  these  gentlemen  have  received 
all  the  information  which  they  have  requested. 

As  has  been  already  observed,  the  Colony  gave  £400,  for  the  first  endowment  of  the 
institution.  In  1640,  it  granted  to  the  College  the  right  of  keeping  a  ferry  over 
Charles  river.  For  many  years  this  privilege  was  of  little  importance,  not  yielding  a 
net  income  of  more  than  twelve  pounds  annually  ;  it  gradually  increased,  however, 
and  was  of  so  much  consequence,  when  Charlestown  bridge  was  erected  in  1786, 
that  the  proprietors  of  that  bridge  became  bound,  in  their  charter,  to  pay  the  College 
£300,  annually,  for  the  loss  of  their  ferry.  Two  other  bridges,  more  recently  erected 
over  the  same  river,  for  a  similar  reason,  pay  to  the  College  each,  the  sum  of  one 
hundred  pounds  annually. 

In  addition  to  this  grant  of  the  ferry,  which,  as  has  been  before  observed,  was  of 
little  importance  in  early  times,  the  General  Court  of  the  Colony  was  in  the  practice 
of  making  annual  grants,  in  aid  of  the  College,  and  to  assist  in  the  payment  of  the 
salaries  of  the  president,  professors  and  tutors.  This  practice  was  long  continued, 
and  did  not  entirely  cease  until  after  the  revolution.  These  sums  being  given  to 
maintain  the  College  from  year  to  year  were  of  course  appropriated  and  exhausted  as 
fast  as  they  were  received ;  and  no  fund,  consequently,  was  ever  produced  by  them. 

Before  the  revolution,  certain  lands,  in  Maine,  were  fjiven  to  the  College  by  the 
General  Court;  from  which  it  has  realized  eight  thousand  dollars,  and  does  not  expect 
to  receive  above  seven  thousand  more.  Massachusetts  Hall  was  built  by  the  Prov- 
ince in  1723  ;  Hollis  Hall  in  1763  ;  and  on  the  burning  of  Harvard  Hall,  while  in  pos- 
session of  the  General  Court  in  1765,  it  was  rebuilt  at  the  public  expense.  Hoi  wor- 
thy Hall  and  Stoughton  Hall  were  built  principally  by  the  proceeds  of  lotteries,  au- 
thorized by  the  Legislature,  but  managed  and  conducted  at  the  expense  and  risk  of 
the  College.  In  1814,  on  the  petition  of  the  College,  the  Legislature  granted  it  ten 
thousand  dollars  a  year,  for  ten  years,  out  of  the  proceeds  of  the  tax  on  banks.  Three 
objects  were  intended  to  be  answered  by  the  application  for,  and  reception  of,  this 
liberal  and  munificent  grant.  The  College  had  undertaken  to  build  University  Hall, 
an  edifice  which  it  deemed  necessary  and  essential,  but  the  cost  of  which  pressed  hard 
upon  its  funds.  The  first  object  of  the  grant  was,  to  pay  the  expense  of  this  building. 
It  was  desirable,  also,  that  there  should  be  a  building  erected  for  the  use  of  the  Med- 
ical school;  and,  lastly,  a  fund  was  wanted  for  charitable  support  of  necessitous 
young  men  of  merit,  the  sons  of  poor  parents,  who,  without  the  aid  of  charity,  could 
not  go  through  a  course  of  education  ;  and  in  whose  possession  of  the  means  of 
knowledge,  the  State  supposed  itself  to  have  an  interest.  University  Hall  and  the 
Medical  College  have  accordingly  been  built;  and  that  part  of  the  annual  grant  (one 
quarter  of  the  whole)  which  was  destined  to  purposes  of  charity,  has  been  so  applied. 

Six  years  of  the  ten  have  now  expired,  and  University  Hall  having  been  built  at 
an  expense  of  sixty-five  thousand  dollars,  and  the  Medical  College  at  an  expense  of 
about  twenty  thousand  dollars,  and  one  quarter  part  of  the  grant  being,  as  before 
mentioned,  appropriated  to  the  use  of  necessitous  scholars,  when  the  four  remaining 
years  shall  have  expired,  the  College  will  have  invested  and   applied   the  whole 


MASSACHUSETTS     CONVENTION.  531 

amount  of  thn  grant,  with  ten  thousand  dollars  of  its  own  funds,  to  the  purposes  for 
which  the  grant  was  made.  The  committee  have  inquired  particularly  into  the  man- 
ner in  which  this  charity  is  distributed,  and  they  think  it  wise,  impartial  and  effica- 
cious.    In  the  first   place,  it  is  given  to  none  but  those  who  apply  for  it,  and  who 

clearly  show,  by  proofs  from  their  instructors,  their  ministers,  the  selectmen  of  their 
town,  or  otherwise,  that  they  and  their  friends  are  necessitous,  and  unable  to  supply 
the  means  of  education.  In  the  next  place,  it.  is  required  thai  they  should  be  persons 
of  fair  character  and  good  behavior;  and  when  it  is  ascertained  that  the  applicant 
possesses  a  fair  character,  and  that  he  is  necessitous,  he  is  admitted  to  partake  in  the 
benefit.  The  scale  of  merit  kept  by  the  instructors  of  the  classes,  is  then  referred 
to,  and  among  those  who  are  thus  necessitous  and  of  fair  character,  such  as  give 
most  proof  of  talent  and  promise  receive  most;  those  who  give  less,  receive  less.  It 
may  be  added,  that  this  charity  is  confined  to  young  men  of  this  State.  The  com- 
mittee do  not  know  how  a  plan  could  be  devised  more  likely  to  give  effect  to  the 
intention  of  the  Legislature.  This  donation,  by  the  act  of  1814,  is  the  only  direct 
grant  of  money,  by  the  State,  since  the  year  1786. 

In  order  to  compare  the  amount  of  donations  made  by  the  State  with  that  of  dona- 
tions by  individuals,  the  committee  have  proceeded  to  inquire  into  the  origin  of  the 
College  funds,  generally ;  and  have  received  on  this  subject,  also,  from  the  corpora- 
tion, all  the  information  desired. 

The  amount  of  all  the  personal  property  holden  by  the  College,  and  yielding  an 
income,  does  not  exceed  three  hundred  thousand  dollars.  Of  this,  more  than  two 
hundred  thousand  dollars  consist  of  donations  made  by  individuals  to  specific  and 
particular  objects ;  so  that  over  this  part  of  the  funds,  the  corporation  has  no  other 
control  whatever,  than  to  apply  the  annual  proceeds  thereof  according  to  the  will  of 
the  donor. 

A  munificent  individual,  for  instance,  chooses  to  establish  a  professorship,  in  any 
branch  of  literature,  and  for  this  purpose  makes  a  donation  to  the  College,  and  in  his 
deed  or  other  instrument  of  gift,  limits  the  application  of  the  proceeds  of  the  fund  to 
this  particular  object.  In  such  case  the  corporation  has  nothing  to  do,  but  to  see 
the  fund  properly  invested  and  secured,  and  that  a  fit  person  be  appointed  professor, 
to  receive  the  income  of  it  for  his  support.  So  of  funds  given  to  aid  poor  scholars, 
to  augment  the  library,  and  other  similar  objects. 

Of  the  remainder  of  the  personal  property,  a  considerable  portion,  viz.  about  eighteen 
thousand  dollars,  arises  from  private  donations,  for  objects  not  immediately  connected 
with  the  College;  such  as  the  maintenance  of  missionaries,  and  in  one  instance,  of  a 
grammar  school.  The  general  unappropriate  fund  of  the  College,  vested  in  personal 
property,  yielding  an  income,  deducting  some  debts  now  chargeable  upon  it,  is  fifty- 
five  thousand  dollars.  The  real  estates  of  the  College,  except  the  public  edifices  be- 
fore mentioned,  are  derived  principally  from  the  donations  of  individuals ;  but  partly 
from  purchases  made  from  the  College  funds.  The  whole  income  of  its  real  estates, 
including  what  it  receives  from  the  proprietors  of  the  several  bridges,  amounts  to  five 
thousand  dollars  annually  ;  of  which  one  thousand  is  appropriated  to  specific  objects 
by  the  donors.  The  sums  received  from  students,  as  rents  for  the  apartments  occu- 
pied by  them,  are  usually  absorbed  in  the  repairs  of  the  various  College  buildings. 
The  income  of  that  part  of  the  personal  property,  which  is  not  appropriated  to  specific 
objects,  and  of  that  part  of  the  real  estate,  in  like  manner,  not  appropriated  to  specific 
objects,  constitutes  the  general  disposable  income  of  the  College,  applicable  to  its 
general  purposes;  such  as  paying  the  instructors  and  officers,  defraying  occasional 
expenses,  and  making  up,  in  some  cases,  a  deficiency  in  a  particular  specific  dona- 
tion, so  that  the  object  of  the  donor  may  be  effected,  and  the  public  enabled  to  receive 
the  benefit  of  his  gift. 

The  amount  of  this  general  disposable  income  still  falls  so  far  short  of  its  object, 
that  a  large  sum  is  necessarily  raised  by  tuition  fees.  The  whole  annual  expendi- 
ture of  the  College,  including  all  the  general  specific  objects,  is,  at  this  time,  about 
thirty  thousand  dollars,  of  which  seventeen  thousand  are  paid  by  the  proceeds  of 
College  funds,  general  and  specific,  and  the  residue  by  tuition  fees,  and  other  cha 
on  tne  students.  The  president,  twenty  professors  in  the  several  departments  of 
science.literature,  divinity,  law  and  medicine  ;  six  tutors,  the  librarian,  steward  and  oth- 
er officers,  are  paid  out  of  these  receipts  ;  as  also  the  expense  of  books  for  the  library, 
apparatus  for  the  philosophical  and  chemical  departments,  and  other  daily  expenses 
incident  to  such  an  institution.     The  accounts  of  the  treasurer,  of  the  receipt  and 


532  MASSACHUSETTS     CONVENTION. 

disbursement  of  the  moneys  of  the   institution,  are,  from  time  to  time,  audited  by  a 
committee  of  the  corporation,  and  also  by  a  committee  of  the  board  of  overseers. 

From  this  account  of  the  state  of  the  funds,  it  is  evident  that  the  establishment  of 
the  institution,  on  the  present  enlarged  plan,  is  not,  and  cannot  be  kept  up,  but  by 
the  help  of  tuition  fees.  And  donations  and  additions  to  the  general  and  disposable 
funds  of  the  College,  would  be  highly  useful  to  the  public,  as  they  would  diminish 
the  necessary  expense  of  education. 

In  pursuance  of  the  opinion  formed  by  the  committee  on  that  part  of  the  subject 
committed  to  them,  which  respects  the  constitutional  rights  and  privileges  of  the 
College,  they  recommend  the  adoption  of  the  folloM-ing  resolution,  viz. : 

Resolved,  That  iris  proper  to  amend  the  constitution,  by  providing  that  the  rights 
and  privileges  of  the  president  and  fellows  of  Harvard  College,  and  the  charter  and 
constitution  thereof,  and  of  the  board  of  overseers  as  at  present  established  by  law, 
be  confirmed  ;  with  this  further  provision,  viz.,  that  the  board  of  overseers,  in  the 
election  of  ministers  of  churches  to  be  members  of  said  board,  shall  not  be  confined 
to  ministers  of  churches  of  any  particular  denomination  of  Christians. 

For  the  Committee,  D.  WEBSTER. 

On  motion  of  Mr.  Webster,  it  was  ordered  that  the  report  be  re- 
ferred to  a  committee  of  the  whole,  and  be  printed. 

Mr.  Q-uincy  moved  that  three  times  the  usual  number  of  copies 
be  printed,  in  order  that  the  report  may  be  circulated.     Ordered. 

Mr.  Leach  of  Easton  offered  a  resolution  proposing  that  hereafter 
no  bank  should  be  incorporated,  nor  the  charter  of  any  one  be  re- 
newed, without  making  the  stockholders  liable  in  their  individual 
capacity.     Laid  on  the  table. 

The  Convention  proceeded  to  the  second  reading  of  the  resolu- 
tions respecting  the  senate  and  house  of  representatives. 

The  first  resolution  of  the  select  committee,  which  provides  that 
the  senate  shall  consist  of  thirty-six  senators,  being  read, 

Mr.  Alvord  of  Greenfield  moved  to  amend  by  adding  that  they 
should  be  chosen  in  districts  as  nearly  as  practicable  in  proportion 
to  the  taxes  paid  by  the  several  districts,  except  that  no  district  shall 
choose  more  than  six  senators.  Mr.  A.  said  his  object  was  to  pre- 
vent any  ambiguity. 

Mr.  Lawrence  of  Groton  opposed  the  amendment.  No  question 
could  arise  on  the  subject,  and  the  amendment  was  unnecessary. 

The  amendment  was  negatived  and  the  resolution  passed. 

The  six  succeeding  resolutions  were  severally  read  and  passed. 

The  eighth  resolution  being  read, 

Mr.  Gifford  of  Westport  moved  to  amend  it  so  as  to  make  1500 
inhabitants,  instead  of  1200,  the  number  sufficient  to  entitle  a  town 
to  send  a  representative  every  year,  and  2500,  instead  of  2400,  the 
number  sufficient  to  entitle  a  town  to  send  an  additional  representa- 
tive. Mr.  G.  stated  some  particulars  of  the  operation  of  these  num- 
bers on  the  representation  on  the  several  counties.  He  said  the 
operation  would  be  more  equal  than  that  of  the  other  numbers — 
that  the  house  of  representatives  would  be  reduced  still  further,  so 
as  not  to  exceed  two  hundred  and  fourteen,  and  that  from  $5000  to 
$10,000  would  be  saved  in  the  annual  expense  of  representation. 

Mr.  Rantoul  of  Beverly  supported  the  amendment,  proposing 
however  to  make  3000  the  increasing  number.  He  said  the  opera- 
tion would  be  more  equal,  particularly  on  the  county  of  Essex,  and 


MASSACHUSETTS    CONVENTION.  533 

the  house  would  be  still  farther  reduced  ;  which  many  gentlemen 
seemed  to  think  desirable. 

Mr.  Beach  of  Gloucester  opposed  the  amendment.  He  said  he 
should  be  sorry  to  disturb  the  harmony  of  the  admirable  and  well 
digested  plan  of  the  select  committee,  which  operates  so  equally, 
throughout  the  Commonwealth,  and  particularly  upon  the  county  of 
Essex. 

The  amendment  was  negatived — 83  to  18. 

Mr.  Martin  said  he  should  vote  for  the  amendment  because  it 
was  better  than  the  resolution  of  the  select  committee,  but  he  pre- 
ferred the  old  system. 

Mr.  Frazer  of  Duxbury  opposed  the  resolution.  He  regretted 
that  this  plan  for  the  house  of  representatives  was  connected  with 
the  plan  for  the  senate.  He  thought  the  people  would  reject  the 
whole. 

The  resolution  then  passed. 
The  ninth  resolution  passed. 
The  tenth  resolution  being  read, 

Mr.  Fox  of  Berkley  moved  to  amend  by  striking  out  the  word 
"  other"    in  the  last  clause  "  every  other  year"  ;  so  as  to  give  the 
small  towns  the  right  of  sending  a  representative  every  year. 
The  amendment  was  negatived  and  the  resolution  passed. 
The  eleventh  resolution  being  read, 

Mr.  Prescott  moved  to  amend  by  substituting  the  word  "small- 
est" for  '-greatest" — his  object  was  to  make  the  year  in  which  the 
valuation  was  settled,  coincide  with  the  year  in  which  the  smallest 
of  the  classed  towns  should  be  regularly  represented,  in  order  to 
give  the  advantage,  if  any,  of  extra  representation  to  the  largest  of 
the  classed  towns. 

Mr.  Lawrence  observed  that  the  smallest  of  the  classed  towns,  as 
the  resolution  stands,  would  have  one  more  representative,  in  ten 
years,  than  the  largest  of  the  classed  towns. 

The  question  on  the  amendment  was  taken,  and  decided  in  favor 
of  the  amendment — 92  to  66. 

A  new  count  was  called  for,  on  the  ground  that  many  members 
did  not  vote,  and  the  amendment  was  negatived — 117  to  155. 

Mr.  Prescott  moved  to  add  to  the  resolution  the  following 
amendment,  viz. : 

"  Provided,  that  if  any  two  adjoining  towns,  each  containing  less  than  1200  inhab- 
itants, shall  belong  to  the  same  class,  and  shall  be  desirous  of  belonging  to  different 
classes,  and  shall  petition  the  Legislature  to  place  them  in  different  classes— it  shall 
be  their  duty  to  do  it  accordingly— and  such  towns  shall  thereafter  be  entitled  to 
elect  a  representative  every  other  year,  until  one  of  them,  by  the  number  of  its  in- 
habitants, shall  be  entitled  to  elect  a  representative  every  year." 

The  amendment  was  adopted  and  the  resolution  passed. 

The  twelfth  resolution  was  read  and  passed. 

The  thirteenth  resolution,  which  requires  that  towns  hereafter 
incorporated,  shall  contain  2400  inhabitants  before  they  shall  be 
entitled  to  send  a  representative,  being  read, 


534  MASSACHUSETTS    CONVENTION. 

A  member  moved  to  substitute  1200.  He  said  he  could  not  per- 
ceive the  reasonableness  of  giving  all  incorporated  towns,  contain- 
ing a  less  number  than  2400,  the  right  of  sending  a  representative, 
and  denying  it  to  towns  of  equal  magnitude  hereafter  to  be  incor- 
porated. There  was  no  provision  in  the  resolutions  for  new  towns 
containing  less  than  2400  inhabitants,  being  either  classed,  or  send- 
ing a  representative  by  themselves. 

Mr.  Mitchell  of  Bridgewater  said  he  had  prepared  an  amend- 
ment, which  would  more  fully  answer  the  purpose  of  the  gentle- 
man who  last  spoke.  The  amendment  he  would  propose  was,  that 
new  towns  should  be  subjected  to  the  same  restrictions,  and  have 
the  same  privileges,  as  other  towns  of  the  same  number  of  in- 
habitants. 

The  former  amendment  was  accordingly  withdrawn  to  give 
place  to  Mr.  Mitchell's. 

Mr.  Mitchell  said  there  were  but  thirty-five  towns  which  had 
more  than  2400  inhabitants.  He  was  aware  that  it  was  an  object 
to  reduce  the  number  of  representatives,  but  he  did  not  wish  to  de- 
prive new  towns  of  being  represented  at  all.  He  had  not  been 
very  friendly  to  the  system  of  the  select  committee,  but  he  wished 
to  make  it  as  perfect  as  possible,  as  he  perceived  that  it  was  the 
intention  of  the  House  to  adopt  it.  He  presumed  that  if  new  towns 
should  not  have  the  privilege  of  sending  a  representative,  the  Legis- 
lature would  not  forget  to  tax  them. 

Mr.  Lincoln  opposed  the  amendment.  In  this  Commonwealth 
there  was  very  little  unincorporated  territory ;  if  Maine  had  con- 
tinued united  with  Massachusetts,  and  this  system  had  been  adopt- 
ed, there  would  have  been  some  reason  for  a  provision  of  this  kind ; 
but  now  it  would  only  give  a  facility  of  dividing  large  towns. 
Under  the  system  proposed,  none  would  want  to  be  divided,  unless 
there  should  be  enough  in  each  division  to  entitle  it  to  send  a  rep- 
resentative. He  had  witnessed  so  much  mischief  and  injury  to 
towns  from  being  divided  for  political  purposes,  that  he  would  not 
enable  the  Legislature  to  make  a  division  with  that  view.  If  the 
town  of  Bridgewater  wished  to  be  divided  for  the  more  convenient 
management  of  their  municipal  concerns,  there  was  no  need  of 
their  having  a  right  to  send  a  representative.  Mr.  L.  said  he  was 
not  inconsistent  with  himself  in  making  this  remark ;  his  object 
hitherto  had  been  to  prevent  towns  being  deprived  of  their  vested 
rights  against  their  consent. 

Mr.  Prescott  spoke  in  opposition  to  the  amendment.  He  sup- 
posed a  town  to  have  3600  inhabitants.  This  number  would  be 
entitled  to  two  representatives ;  but  by  dividing  the  town  into  three 
new  ones,  the  same  number  of  inhabitants  would  according  to  this 
amendment  send  three  representatives. 

Mr.  Mitchell  replied. 

Mr.  Yarnum  said  he  was  aware  that  the  town  of  Bridgewater  had 
applied  to  the  Legislature  to  be  divided,  and  that  the  Legislature 
had  declined  granting  their  request.     He  hoped  we  had  come  to  an 


MASSACHUSETTS     CONVENTION.  535 

end  of  dividing  large  corporations.  Bridge  water  had  been  a  large 
and  respectable  corporation  for  nearly  two  hundred  years,  and  he 
hoped  it  would  continue  so  for  two  hundred  years  more.  He  hoped 
the  amendment  would  not  prevail. 

The  amendment  was  negatived  and  the  resolution  passed. 

The  fourteenth  resolution  being  read, 

Mr.  Martin  said  he  should  feel  bound  to  oppose  the  resolution 
all  in  his  power,  and  this  being  the  last  opportunity,  he  should  state 
his  objections.  He  proceeded  to  argue  at  some  length  against  the 
resolution.  He  was  opposed  to  the  whole  system,  and  he  proposed 
to  lay  on  the  table  to-morrow  a  proposition  to  take  the  old  constitu- 
tion with  but  one  amendment.  He  moved  to  amend  the  resolution, 
so  that  the  representatives  shall  be  paid  for  their  attendance  by  their 
respective  towns. 

Mr.  Flint  spoke  in  favor  of  the  resolution  under  consideration, 
and  against  the  amendment.  He  said  that  the  representatives  came 
to  do  the  business  of  the  Commonwealth,  and  not  of  towns,  and  he 
did  not  consider  it  dishonorable  or  unjust  to  require  the  State  to  pay 
for  their  attendance. 

Mr.  Martin  spoke  again  in  favor  of  the  amendment. 

The  motion  was  negatived,  33  to  274,  and  the  resolution  passed. 

The  fifteenth  resolution  was  read. 

Mr.  Phelps  of  Belchertown  thought  that  a  hundred  was  too  high  a 
number  for  the  quorum  of  the  house,  and  he  moved  to  amend  by 
striking  out  one  hundred  and  inserting  sixty. 

Mr.  Varnum  thought  one  hundred  was  too  low  a  number,  and  the 
quorum  ought  to  be  equal  to  half  the  persons  elected. 

The  amendment  was  negatived  and  the  resolution  passed. 

The  sixteenth  and  seventeenth  resolutions  were  read  and  passed. 

Mr.  Prescott,  chairman  of  the  committee  to  whom  the  subject 
was  referred  in  the  first  reading,  reported  the  following  resolve,  as 
taken  into  a  new  draft : 

Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  constitu- 
tion, so  as  to  provide,  that  when  any  two  towns,  each  of  which  shall  contain  less 
than  1200  inhabitants,  or  any  town,  or  town  and  district,  now  united  for  the  purpose 
of  choosing  a  representative,  and  another  town,  each  of  which  towns  separately,  or 
united  towns,  cr  towns  and  districts,  shall  contain  less  than  1200  inhabitants,  shall 
prefer  being  united  for  the  purpose  of  electing  a  representative  together  every  year, 
to  choosing  one  every  other  year  separately,  and  shall  apply  to  the  Legislature  to 
unite  them  for  that  purpose,  the  Legislature  shall  unite  them  accordingly ;  and  the 
meetings  for  the  election  of  their  representative  shall  be  holden  in  such  town,  and  at 
such  time,  and  the  choice  they  shall  make  shall  he  certified  by  the  selectmen  of  one 
or  both  of  said  towns,  in  such  manner  as  the  Legislature  shall  direct; — and  such 
towns  shall  continue  so  united  until  the  inhabitants  of  one  of  them  shall  have  in- 
creased to  such  a  number  as  shall  entitle  it  separately  to  send  a  representative;  or 
until  one  of  said  towns,  by  a  vote  of  a  major  part  of  the  legal  voters  therein,  shall 
apply  to  the  Legislature  to  separate  them ;  whereupon  it  shall  be  their  duty  to  sep- 
arate them  accordingly  ;  and  to  class  them  in  the  same  manner  they  were  classed 
before  they  were  so  united. 

Read  a  second  time,  as  reported,  and  passed. 
The  resolution  for  limiting  the  number  of  representatives  after 
the  year  1830,  being  read. 


536  MASSACHUSETTS    CONVENTION. 

Mr.  Pkescott  moved  to  amend  by  striking  out  the  proviso,  and 
inserting  the  following : 

And  if  any  town  which  now  contains  1200  inhabitants,  shall,  at  the  time  of  taking 
the  census  aforesaid,  or  in  any  tenth  year  afterwards,  be  found  not  to  contain  the 
number  of  inhabitants  which,  according  to  the  provision  aforesaid,  shall  then  be 
requisite  to  entitle  it  to  send  a  representative  every  year,  such  town  shall  be  classed 
by  the  Legislature,  and  shall  thereafter  be  entitled  to  send  a  representative  every 
other  year,  until  it  shall  have  attained  a  competent  number  to  entitle  it  to  send  a 
representative  every  year — and  no  town,  or  town  and  district,  which,  according  to 
the  census  which  is  now  taking,  shall  be  entitled  to  send  a  representative  every 
other  year,  shall  ever  be  deprived  of  that  privilege. 

Mr.  Parker  of  Southborough  was  opposed  to  the  amendment. 
It  would  have  an  unfavorable  bearing  on  the  small  towns,  and 
would  do  away  the  principle  already  allowed.  It  would  deprive 
them  of  the  prospect  of  ever  attaining  the  right  to  a  permanent 
representative. 

Mr.  Stone  of  Stow  and  Boxborough  said  that  no  provision  was 
made  for  the  towns  now  united. 

Mr.  Abbot  hoped  the  amendment  would  not  pass.  It  would  dis- 
turb the  arrangement  after  1830,  and  put  it  in  the  power  of  the 
Legislature  to  make  the  increasing  number  larger  or  smaller  for  par- 
ty purposes.  He  thought  it  better  to  leave  the  system  as  it  was 
reported.  If  the  house  should  become  too  large  in  future,  the  pro- 
vision for  amendment  would  furnish  the  means  for  rectifying  it. 

Mr.  Lincoln  said  that  the  one  hundred  and  forty-eight  towns  not 
entitled  to  a  representative,  unless  they  increased  faster  than  the 
State  at  large,  would  never  have  a  right  to  a  representative. 

Mr.  Apthorp  was  in  favor  of  the  amendment,  because  there  was 
no  other  way  of  limiting  the  number  of  the  house. 

Mr.  Story  considered  it  as  a  proper  and  necessary  part  of  the  sys- 
tem. He  hoped  the  amendment  would  prevail,  because  without  it 
the  house  might  go  on  to  increase  until  it  became  as  large  as  it  is 
now,  and  a  town  of  1200  inhabitants,  not  increasing,  might  have  a 
greater  privilege  than  a  town  now  smaller,  which  should  increase 
to  a  greater  number. 

The  amendment  was  agreed  to — 174  to  109 — and  the  resolution 
passed. 

Mr.  Sibley  moved  that  when  the  House  adjourned  it  should  ad- 
journ to  this  afternoon  at  half  past  3  o'clock.     Negatived. 

On  motion  of  Mr.  Prescott  the  Convention  proceeded  to  the 
first  reading  of  the  resolutions  of  the  select  committee  relating  to  the 
council. 

The  first  resolution  was  read,  the  amendment  made  in  committee 
of  the  whole  was  agreed  to,  and  it  passed  to  a  second  reading. 

The  second  resolution,  which  fixes  the  number  of  counsellors  at 
seven,  and  the  quorum  at  four,  was  read. 

Mr.  Morton  offered  a  resolution  as  a  substitute  for  the  second 
and  third  of  the  select  committee,  proposing  that  one  counsellor 
should  be  chosen  by  the  inhabitants  of  each  senatorial  district,  and 
the  persons  so  chosen  should  form  the  council ;  Yfi fancies  in  any 


MASSACHUSETTS    CONVENTION.  537 

district,  if  any,  to  be  filled  by  the  Legislature,  from  the  two  persons 
having  the  greatest  number  of  votes  in  the  district. 

The  motion  was  decided  not  to  be  in  order,  it  being  a  proposition 
to  make  a  substantial  amendment  in  the  constitution,  which  had  not 
been  discussed  in  committee  of  the  whole. 

Mr.  Morton  then  moved  that  the  Convention  now  go  into  com- 
mittee of  the  whole,  on  the  resolution.     Negatived. 

The  second  resolution  then  passed  to  a  second  reading. 

The  third  resolution  which  provides  that  the  counsellors  shall  be 
chosen  by  the  two  houses  of  the  Legislature,  in  convention,  was 
read. 

Mr.  Morton  moved  to  amend  it  by  substituting  in  substance,  a 
resolution  offered  by  him  in  committee  of  the  whole,  proposing  that 
there  shall  be  annually  chosen  in  each  district  one  person  to  be 
returned  as  counsellor,  and  that  from  the  persons  so  returned  seven 
shall  be  chosen  by  joint  ballot,  to  constitute  the  council. 

Mr.  Morton  stated  briefly  his  reasons  in  favor  of  the  amendment. 
It  had  been  his  object  to  make  it  conform  to  the  true  spirit  of  the 
constitution,  from  which  he  considered  the  proposition  of  the  select 
committee  a  direct  departure. 

The  amendment  was  negatived. 

On  motion  of  Mr.  Dana  the  blank  was  filled  with  the  first  Wed- 
nesday in  January. 

Mr.  Quincy  said,  that  the  phrase,  "  from  among  the  people  at 
large,"  had  received  a  construction  which  he  thought  was  incorrect. 
To  restore  what  he  considered  the  true  construction  he  moved  to 
amend  the  resolution  by  adding  the  words,  "excluding  members  of 
the  house  of  representatives." 

Mr.  Bond  opposed  the  amendment.  He  said  it  had  sometimes 
been  found  difficult  to  find  persons  in  each  district  suitably  qualified 
who  would  accept  the  office  ;  and  the  persons  best  qualified  might 
be  members  of  the  house  of  representatives. 

Mr.  Quincy  replied  to  the  objection,  and  the  amendment  was 
agreed  to — 160  to  31. 

On  motion  of  Mr.  Sibley,  the  resolution  was  further  amended  by 
inserting  before  "representatives  "  the  words,  "senators  and." 

Mr.  Blake  hoped  he  should  not  have  the  appearance  of  too  great 
pertinacity  in  favor  of  a  principle  which  he  had  supported,  if  he  re- 
newed the  proposition  which  he  had  made  in  committee  of  the 
whole  to  retain  the  mode  of  election  now  provided  by  the  constitu- 
tion. He  therefore  moved  that  the  resolution  should  be  so  amended 
as  to  provide  that  no  further  alteration  should  be  made  in  this  part 
of  the  constitution. 

Mr.  Austin  moved  that  the  question  on  the  amendment  should  be 
taken  by  yeas  and  nays.     Negatived — 28  to  241. 

The  amendment  was  negatived  without  a  division. 

Mr.  Pickman  moved  to  amend  the  resolution  by  inserting, 

The  counsellors  shall  have  the  same  qualifications  in  point  of  property  and  resi- 
dence in  the  Commonwealth  as  are  required  by  this  constitution  for  senators,  and  the 

68 


538  MASSACHUSETTS    CONVENTION. 

senate  and  house  of  representatives  may  fill  any  vacancy  that  may  exist  in  the  coun- 
cil by  reason  of  death,  resignation  or  otherwise,  in  the  manner  aforesaid. 

The  amendment  was  agreed  to. 

The  resolution  then  passed  to  a  second  reading. 

The  fourth  resolution  was  amended  on  motion  of  Mr.  Taft  of 
Uxbridge,  by  substituting  "  senatorial  district "  for  ''county/'  and 
passed  to  a  second  reading. 

The  fifth  resolution  was  read,  the  blank  filled  with  the  first  Wed- 
nesday in  January,  and  passed  to  a  second  reading. 

To-morrow  at  10  o'clock  was  assigned  for  the  second  reading  of 
the  several  resolutions. 

Leave  of  absence  was  granted  to  Messrs.  Oakham  of  Pembroke, 
Grosvenor  of  Paxton,  Dickenson  of  Belchertown,  Gilbert  of 
North  Brookfield,  and  Cobb  of  Brewster. 

The  House  adjourned. 


Friday,  January  5. 

The  House  met  at  half  past  9  o'clock,  and  attended  prayers 
offered  by  the  Rev.  Mr.  Jenks.  After  which  the  journal  of  yester- 
day was  read. 

Leave  of  absence  was  granted  to  Messrs.  Dimmick  of  Falmouth, 
Howard  of  Bridgewater,  Harwood  of  Enfield,  Fisher  of  Lancaster, 
and  Parker  of  New  Bedford. 

On  motion  of  Mr.  Draper,  chairman  of  the  committee  on  ac- 
counts, it  was  ordered  that  each  member  of  the  Convention  be  fur- 
nished with  a  copy  of  the  journal  of  its  proceedings,  now  publishing 
in  a  volume,  providing  the  same  may  be  had  for  a  reasonable  com- 
pensation. 

Mr.  Hinckley  of  Northampton,  chairman  of  a  select  committee  to 
whom  a  resolution  on  the  subject  of  filing  informations  was  com- 
mitted at  the  first  reading,  reported  the  same  with  amendments,  and 
to-morrow  was  assigned  for  its  second  reading. 

On  motion  of  Mr.  Lyman  of  Northampton,  the  resolution  offered 
by  him  respecting  counsellors  was  referred  to  the  committee  of  the 
whole  to  whom  was  referred  the  resolution  of  the  select  committee 
on  the  subject  of  Harvard  College. 

On  motion  of  Mr.  Leach  of  Easton,  the  resolution  offered  by  him 
yesterday  respecting  banks,  was  referred  to  the  same  committee  of 
the  whole. 

Mr.  Hinckley,  chairman  of  the  select  committee  to  whom  the 
subject  was  referred,  reported  a  resolution  for  regulating  the  pro- 
ceedings in  prosecutions  for  libels.  Referred  to  the  same  committee 
of  the  whole. 

Mr.  Fisher  of  Westborough  offered  a  resolution  respecting  the 
salaries  of  the  governor,  and  justices  of  the  supreme  judicial  court. 
Referred  to  the  same  committee  of  the  whole. 

A  member  offered  a  resolution  proposing  to  abolish  the  office  of 


MASSACHUSETTS     CONVENTION.  539 

lieutenant  governor,  and  moved  that  it  be  referred  to  the  same  com- 
mittee of  the  whole.     Negatived. 

On  motion  of  Mr.  Webster  the  House  went  into  committee  of 
the  whole  on  the  resolution  relating  to  Harvard  College,  and  the 
other  resolutions  referred  to  the  same  committee,  Mr.  Pickman  of 
Salem  in  the  chair. 

The  committee  proceeded  to  the  consideration  of  the  resolution 
offered  by  Mr.  Lyman,  for  providing  that  no  counsellor  shall  be  ap- 
pointed to  any  other  office  during  the  time  for  which  he  shall  have 
been  elected  a  counsellor. 

Mr.  Lyman  said  he  borrowed  the  provision  from  the  constitution 
of  Maine.  The  design  was  to  prevent  the  governor  being  sur- 
rounded by  men  desirous  of  office.  He  would  have  the  counsellors 
above  the  desire  of  other  offices. 

Mr.  Turner  of  Scituate  suggested  that  the  office  of  justice  of  the 
peace  should  be  excepted. 

Mr.  Dana  of  Groton  objected  to  the  resolution,  as  its  tendency 
would  be  to  prevent  suitable  persons  from  accepting  the  office  of 
counsellor. 

Mr.  Starkweather  and  Mr.  Bond  spoke  in  favor  of  the  resolu- 
tion. 

Mr.  Webster  said  he  thought  a  little  reflection  would  convince 
gentlemen  of  the  inexpediency  of  this  provision.  Something  like 
it  was  to  be  found  in  the  constitution  of  the  United  States,  which 
prohibited  members  of  Congress  being  appointed  to  any  civil  office 
under  the  authority  of  the  United  States,  created  while  they  Avere  in 
Congress;  but  this  prohibition  never  came  to  anything.  A  law 
would  be  passed  on  the  third  of  March,  and  the  appointment  be 
made  on  the  fourth.  Counsellors  would  decline  in  order  to  be  ca-- 
pable  of  holding  a  more  desirable  office.  If  the  governor  had  not 
sufficient  character  to  prevent  him  from  being  unduly  influenced, 
we  ought  not  to  prevent  him  in  this  way  ;  and  we  could  not  do  it 
if  we  would.  We  should  diminish  the  respectability  of  the  council, 
if  going  into  the  council  was  going  into  Coventry.  No  evil  had  re- 
sulted from  the  want  of  such  a  provision  in  the  constitution. 

Mr.  Q,uincy  said  office  seekers  were  a  slippery  race.  They  only 
slip  off  one  skin  and  go  into  another.  A  provision  of  this  kind 
would  not  be  secure  against  evasions.  He  hoped  the  resolution 
would  not  be  adopted. 

The  question  was  taken  on  the  resolution  and  decided  in  the 
negative. 

The  committee  next  took  up  the  resolution  respecting  libels,  pro- 
viding that  in  prosecutions  for  libels  against  public  men,  the  truth 
may  be  given  in  evidence,  and  that  the  jury  may  determine  both 
the  law  and  the  fact. 

Mr.  Hinckley  remarked  that  the  select  committee  had  taken  time 
and  duly  considered  the  subject  of  the  resolution.  Some  of  that 
committee  thought  the  law  was  well  established  in  conformity  with 
this  resolution,  and  some  thought  it  would  be  well  to  have  an  ex- 


540  MASSACHUSETTS    CONVENTION. 

press  clause  in  the  constitution.  This  resolution  did  not  go  so  far 
as  the  proposition  of  the  gentleman  from  Boston  which  was  referred 
to  the  committee. 

Mr.  Blake  hoped  the  resolution  would  prevail.  He  had  thought 
the  constitution  defective  in  this  particular.  The  constitution 
adopted  the  common  law  as  it  had  been  used  and  practised  in  this 
Commonwealth,  leaving  it  uncertain  what  part  of  that  law  had  been 
used  and  practised  here.  In  a  case  twenty  years  ago,  it  was  con- 
tended that  the  odious  common  law  doctrine,  respecting  libels,  had 
not  been  adopted  in  this  Commonwealth,  but  the  court  were  of  a 
different  opinion.  Great  pains  had  been  taken  to  render  the  law 
clear  respecting  offences,  but  with  respect  to  seditious  libels  there 
had  always  been  doubts  and  a  difference  of  opinion.  As  the  com- 
mon law  stands  the  court  has  unlimited  power  in  relation  to  the 
punishment  of  offenders.  At  the  common  law  the  practice  had 
been  carried  to  a  monstrous  extent ;  so  that  the  truth  of  the  charge 
was  held  to  be  rather  an  aggravation  of  the  offence.  The  present 
resolution  proposed  a  useful  alteration. 

Mr.  Parker  said  it  had  been  decided  that  the  constitution  already 
contained  the  provision,  and  more  broadly  than  in  the  amendment 
proposed,  that  the  truth  might  be  given  in  evidence  in  prosecutions 
for  libels  against  public  officers.  Aud  as  to  the  other  part  of  the 
resolution,  the  law  now  was  that  the  jury  were  judges  of  the  law 
and  the  fact  under  the  direction  of  the  court.  He  considered  the 
proposed  alteration  to  be  unnecessary. 

Mr.  Saltonstall  said  the  amendment  had  been  urged  on  the 
ground  that  the  common  law  was  adopted  by  the  constitution.  The 
article  only  provides  that  the  laws  usually  practised  on  in  the  courts 
of  law,  shall  remain  in  force  until  altered  or  repealed  by  the  Legis- 
lature. If  any  modification  of  the  law  is  necessary  it  is  entirely  in 
the  power  of  the  Legislature.  But  it  is  not  necessary.  The  law 
now  stands  precisely  on  the  footing  on  which  the  mover  of  the 
resolution  would  wish  to  place  it. 

Mr.  Morton,  as  one  of  the  select  committee,  assented  to  the  re- 
port, not  from  any  apprehension  of  the  law  as  it  now  is,  but  of  the 
common  law  of  England  formerly — that  only  the  fact  of  publication 
need  be  proved,  and  the  court  was  to  determine  what  was  libel. 
But  in  this  country  the  common  law  is  adopted  only  as  far  as  it  is 
applicable  to  our  institutions.  He  stated  the  law  as  it  had  been  laid 
down  in  our  courts.  He  was  willing  the  resolution  should  be  either 
adopted  or  rejected. 

Mr.  Dutton  hoped  the  resolution  would  not  be  adopted.  It  went 
only  to  establish  what  was  now  the  law  of  the  land.  In  the  case 
of  the  Commonwealth  vs.  Clap,  the  whole  law  was  laid  down,  and 
in  broader  terms  than  in  this  resolution.  That  the  jury  have  the 
right  of  deciding  on  the  law  as  well  as  the  fact,  is  a  part  of  the  com- 
mon law  of  the  country — and  it  is  laid  down  in  broader  and  more 
favorable  terms  than  in  the  resolution.  Besides,  the  Legislature 
have  full  power  to  act  in  the  case  if  it  were  necessary. 


MASSACHUSETTS     CONVENTION.  541 

Mr.  Austin  of  Charlestown  hoped  the  resolution  would  pass.  If 
it  was  now  the  law  of  the  land,  he  asked  if  it  was  twenty  years  ago, 
and  if  it  might  not  be  different  twenty  years  hence.  It  was  said 
the  Legislature  had  power  to  alter  the  common  law.  But  they  have 
not  done  it.  If  in  forty  years  they  have  not  exercised  the  power,  it 
is  time  we  should  do  it  for  them. 

Mr.  Blake  said  it  had  been  stated  that  the  whole  subject  was 
well  settled  by  law.  He  wished  to  know  if  it  was  by  the  constitu- 
tion. What  was  law  to-day  might  not  be  law  to-morrow.  The 
books  were  full  of  cases  in  which  the  decisions  of  judges  were  over- 
ruled by  succeeding  judges,  and  the  law  of  libel  was  more  likely  to 
be  changed  than  any  other.  It  was  contended  that  it  should  be 
left  to  the  Legislature — we  might  as  well  leave  the  liberty  of  the 
press  to  the  Legislature.  The  constitution  established  the  freedom 
of  the  press,  and  the  law  of  libel  was  intimately  connected  with  it. 
It  was  a  very  difficult  subject  to  say  what  was  libel,  and  what  was 
not,  and  it  was  as  much  the  duty  of  the  Convention  to  make  the 
law  of  libel  permanent  as  the  liberty  of  the  press.  He  referred  to 
a  case  in  1798,  when  it  was  decided  by  the  supreme  court  of  that 
day  that  the  truth  could  not  be  given  in  evidence,  but  the  court  al- 
lowed it  as  an  indulgence  which  the  law  did  not  require. 

Mr.  Jackson  of  Boston  agreed  that  the  resolution  was  unnecessary 
because  the  law  already  contained  all  that  was  required.  The  prin- 
ciple had  been  settled  in  this  State  several  years  ago,  and  had  been 
uniformly  acted  upon.  But  he  objected  to  the  resolution,  because 
it  restrained  the  law  and  made  it  more  narrow.  The  principle  of 
the  law  is,  that  one  may  always  publish  the  truth  from  right  mo- 
tives and  for  justifiable  ends.  This  he  conceived  to  be  the  common 
law  of  England,  if  rightly  understood,  but  having  been  corrupted, 
the  act  of  parliament  of  the  last  reign  was  passed  to  bring  back  the 
law  to  what  it  was  formerly.  When  the  people  are  called  on  to  elect 
public  officers  it  is  right  that  they  should  be  informed  of  the  charac- 
ters of  the  candidates,  and  it  is  the  right  of  any  person  to  instruct 
the  public  mind  in  relation  to  them.  On  this  principle,  all  candi- 
dates are  considered  as  putting  their  characters  before  the  public, 
and  any  one  has  a  perfect  right  to  say  anything  that  has  any  rela- 
tion to  their  qualifications  for  the  office  that  is  true.  This  right 
depends  on  the  motive  and  the  end  in  view.  But  this  resolution 
does  not  go  far  enough.  It  extends  only  to  public  men.  Suppose 
an  apothecary  in  vending  medicines  sells  those  which  are  poisons, 
no  one  can  doubt  that  it  is  my  duty  to  inform.  What  is  the  ground 
on  which  I  am  excused  ?  It  is  that  I  do  it  from  a  right  motive,  and 
for  a  justifiable  end.  But  the  resolution  does  not  go  to  this  case.  If 
it  is  a  part  of  the  constitution,  it  ought  to  go  to  every  case  to  which 
the  reason  of  it  extends. 

This  resolution  is  loose  in  another  view.  It  would  seem  to  give 
the  right  to  publish  everything  of  a  public  officer  that  is  true, 
though  it  be  done  from  a  corrupt  and  malicious  motive.  If  a  man 
publishes  a  slanderous  private  anecdote  of  an  individual,  which  has 


542  MASSACHUSETTS    CONVENTION. 

nothing  to  do  with  his  qualifications  for  office,  and  if  the  jury  be- 
lieve that  it  is  done  for  a  malicious  motive,  and  that  he  took  advan- 
tage of  the  occasion  of  his  being  a  candidate  for  office,  to  give  vent 
to  a  private  pique,  they  ought  to  convict  him,  and  it  should  be  no 
answer  that  what  is  asserted  is  true.  The  resolution  therefore  does 
not.  go  far  enough  in  one  particular,  and  goes  too  far  in  another. 
Besides,  the  present  law  is  on  a  proper  footing,  and  if  the  decision 
sh,ould  be  overruled,  it  is  in  the  power  of  the  Legislature,  by  statute, 
to  regulate  it  at  pleasure. 

The  resolution  was  negatived. 

The  resolution  offered  by  Mr.  Fisher,  providing  that  the  Gen- 
eral Court  should  have  power  to  lessen  as  well  as  enlarge  the  sala- 
ries of  the  governor  and  justices  of  the  supreme  judicial  court,  when 
they  shall  judge  proper  and  expedient,  was  agreed  to,  without 
debate. 

The  resolution  providing  that  no  bank  should  hereafter  be  incor- 
porated, nor  the  charter  of  any  existing  bank  renewed,  unless  the 
stockholders  shall  be  liable  in  their  private  capacity,  was  read. 

Mr.  Thorndike  opposed  the  resolution.  It  did  not  determine 
who  were  intended,  the  original  stockholders  or  the  stockholders  at 
the  time  of  any  defalcation. 

Mr.  Story  opposed  it.  If  adopted,  no  bank  would  ever  be  estab- 
lished unless  by  a  few  rich  individuals,  who  had  perfect  confidence 
in  each  other,  and  it  would  be  in  few  hands.  It  would  besides  put 
it  in  the  power  of  speculators  to  establish  banks  and  make  a  profit 
from  the  stock,  and  to  shift  all  the  burden  upon  the  poorer  and  least 
protected  class  of  people,  to  widows,  minors  and  orphans,  who  have 
no  share  in  the  direction  and  no  means  of  judging  of  the  hazards 
they  run.  If  the  original  stockholders  are  to  be  liable,  the  man 
who  sells  out  will  be  liable  to  the  amount  of  his  whole  estate  for 
the  acts  of  his  successors.  He  may  die,  leaving  an  independent 
fortune  to  his  family,  and  in  one  year  after  his  death  it  may  be  all 
taken  from  them  for  a  defalcation  in  a  concern  in  which  he  had  for 
years  had  no  interest.  It  would  besides  produce  no  remedy  for  the 
evils  under  which  we  labor.  Bills  from  other  states,  entitled  to 
vastly  less  confidence  than  our  own,  would  supply  the  place  of 
those  which  this  measure  would  force  out  of  existence. 

Mr.  Sturgis,  Mr.  Q,uincy,  Mr.  Welles,  Mr.  Bond  and  Mr.  Shaw 
spoke  against  the  resolution,  and  Mr.  Hoyt  said  a  few  words  in 
favor  of  it. 

The  resolution  was  negatived — 126  to  173. 

The  resolution  reported  yesterday,  for  confirming  the  charter  of 
Harvard  College,  with  a  modification,  was  then  taken  up. 

Mr.  Varnum  called  for  the  reading  of  the  law  of  1814.  The  law 
was  read,  and  also  an  attested  copy  of  the  acts  of  the  corporation 
and  of  the  board  of  overseers,  dated  January  3,  1821,  signifying 
their  assent  to  the  proposed  alteration  of  the  charter. 

Mr.  Varnum  said  the  law  of  1814  had  never  been  agreed  to  at  a 
meeting  properly  notified. 


MASSACHUSETTS    CONVENTION.  543 

Mr.  Webster  said  he  should  prefer  not  to  take  up  much  time 
now,  but  wished  to  give  the  resolution  the  necessary  passage 
through  the  committee,  and  to  take  it  up  to-morrow  for  more  full 
consideration  when  the  report  would  have  been  in  the  possession  of 
members. 

Mr.  Richardson  said  that  he  was  happy  to  hear  yesterday  the 
report  on  the  liberal  principles  which  were  now  acknowledged  in 
theory.  When  the  subject  was  first  introduced,  the  gentlemen  who 
defended  the  College,  took  the  ground  that  the  charter  could  not  be 
altered.  He  was  happy  to  learn  that  this  ground  was  now  aban- 
doned, and  to  find  that  it  was  agreed  that  it  might  be  altered  so  as 
to  admit  to  the  corporation  ministers  of  other  denominations.  As 
far  as  the  resolution  proposed  to  admit  the  right  of  the  corporation 
to  elect  persons  of  other  denominations,  he  was  in  favor  of  it.  But 
he  could  not  admit  that  it  was  proper  to  confirm  the  board  of  over- 
seers as  it  is  now  constituted.  That  board  was  constituted  contrary 
to  the  express  provisions  of  the  constitution,  which  established  the 
Congregational  ministers  of  the  neighboring  towns  as  part  of  the 
board  of  overseers.  These  are  excluded  by  the  act  of  1814  which 
is  now  to  be  confirmed.  Nothing  was  gained  to  other  denomina- 
tions by  this  exclusion.  The  board  of  overseers  had  never  made 
such  a  mistake  as  to  admit  among  the  fifteen  clergymen  a  minister 
of  any  other  denomination.  It  was  the  intention  of  the  constitu- 
tion that  the  General  Court  should  always  keep  the  College  under 
its  control.  The  Legislature  had  no  power  to  transfer  the  vested 
rights  of  the  Congregational  clergy.  The  act  of  1814  will  keep  the 
control  in  the  hands  of  Congregationalists.  The  Congregation- 
alists  in  the  State  government,  voting  with  the  thirty  permanent 
overseers,  will  keep  the  government  of  the  College  out  of  the  power 
of  the  State.  All  the  permanent  clerical  overseers  must  be  Congre- 
gationalists ;  no  others  are  thought  worthy,  although  those  who  are 
usually  elected  much  less  resemble,  in  their  sentiments,  the  teach- 
ing elders,  than  do  those  of  some  other  denominations.  This  board, 
so  constituted,  is  to  continue  forever,  without  any  favor  to  persons 
who  have  not  a  liberality  like  their  own.  If  the  resolution  had 
only  proposed  to  strike  out  of  the  constitution  the  word  "  Congre- 
gational," he  should  have  been  in  favor  of  it ;  but  as  it  also  proposes 
to  confirm  the  board  of  overseers  as  now  constituted,  he  should  vote 
against  it,  that  we  may  retain  the  constitution  as  it  now  stands. 

Mr.  Webster  said  it  would  be  affectation  in  him  to  express  sur- 
prise at  the  opposition  of  the  gentleman  from  Hingham,  although 
the  resolution  was  in  conformity  to  his  own  proposition.  If  the 
gentleman  had  read  the  constitution,  he  would  have  perceived  that 
the  Legislature  had  the  power,  with  the  consent  of  the  corporation 
and  board  of  overseers,  to  make  an  alteration  in  the  board  of  over- 
seers, according  to  the  act  of  1810,  which  was  reestablished  by  the 
act  of  1814.  The  select  committee  agreed  that  the  present  consti- 
tution of  the  government  of  the  College  was  safe  and  efficient,  and 
that  the  State  goverment  had  as  much  control  over  the  College  as 


544  MASSACHUSETTS    CONVENTION. 

was  necessary  or  proper.  As  far  as  his  knowledge  extended,  no  lit- 
erary institution  had  ever  flourished  by  being  under  the  immediate 
control  and  management  of  the  civil  government.  If  there  was  a 
settled,  well  regulated  College  government,  they  would  feel  a 
deeper  and  more  immediate  interest  in  the  prosperity  of  the  Col- 
lege, and  would  manage  its  concerns  with  more  efficiency  and  ad- 
vantage to  the  community.  He  was  astonished  to  hear  the  gentle- 
man from  Hingham  express  apprehensions  from  the  enormous  power 
of  this  corporation.  If  he  did  not  misunderstand  him,  that  gentle- 
man said  we  should  have  a  powerful  institution  built  up  by  the 
State  and  independent  of  the  State. 

Mr.  Richardson  disavowed  having  expressed  such  a  sentiment. 

Mr.  Webster  said  he  did  not  mean  to-day,  but  when  the  subject 
was  before  under  discussion,  and  he  presumed  the  gentleman  had 
the  written  speech  in  his  pocket,  in  which  he  might  find  the  re- 
mark, if  he  would  take  the  trouble  to  turn  to  it.  He  recollected 
that  the  gentleman  then  moved  to  strike  out  the  word  "  Congrega- 
tional"  from  the  constitution,  to  prevent  clergymen  of  that  denom- 
ination from  having  exclusive  privileges.  This  is  granted  to  him  ; 
and  now  he  says  we  are  taking  away  the  rights  of  Congregational 
clergymen.  All  that  that  can  be  done  is  to  open  the  door  to  persons 
of  all  denominations  ;  the  gentleman  is  not  warranted  in  saying  that 
none  but  Congregationalists  will  ever  be  admitted.  In  answer  to 
the  gentleman  from  Dracut,  Mr.  W.  said  the  board  of  overseers 
might  be  wanting  in  rules  to  regulate  their  proceedings  ;  he  would 
only  remark  that  the  meeting  held  by  them,  for  the  purpose  of  as- 
senting to  the  law  of  1814,  was  warned  in  the  manner  which  has 
been  practised  for  a  long  time. 

Mr.  Story  said  he  had  listened  with  an  anxious  desire  to  know 
the  difficulties  relating  to  the  constitution  of  the  College,  and  the 
remedies  which  might  be  applied  to  them.  When  the  report  of  the 
select  committee  was  read,  and  a  remedy  provided  for  all  the  diffi- 
culties which  had  been  pointed  out,  he  hoped  the  resolution  would 
have  passed  without  opposition.  It  appeared  that  the  College  had 
suffered  much  in  the  public  opinion,  from  a  misrepresentation  of  the 
amount  of  its  funds,  and  the  manner  in  which  they  had  been  appro- 
priated. These  misapprehensions  were  now  dispelled.  What  have 
been  the  practical  difficulties  heretofore  ?  that  the  government  and 
privileges  of  the  institution  were  not  open  equally  to  persons  of  all 
denominations.  It  was  not  pretended  that  the  College  was  not  es- 
tablished by  Congregationalists ;  and  Congregationalists  had  done 
no  more  than  is  usual  with  other  sects,  when  they  found  an  insti- 
tution of  this  kind.  Would  any  gentleman  say  that  Andover  Col- 
lege ought  to  be  subjected  to  Christians  of  another  sect  ?  It  was  said 
that  Harvard  College  was  the  child  of  the  State  and  under  its  pat- 
ronage. He  was  glad  of  it,  and  he  was  sorry  that  its  funds  had 
been  aided  so  little  by  the  State,  much  less  than  he  had  supposed, 
compared  with  the  munificent  donations  of  private  individuals.  In 
regard  to  the  charter,  had  any  man  doubted  that  the  constitution  of 


MASSACHUSETTS    CONVENTION.  545 

1780  was  right?  And  had  not  the  alterations  made  since  by  the 
Legislature,  in  the  government  of  the  College,  been  in  conformity 
to  the  constitution  ?  He  might  have  it  his  duty,  hereafter,  to  keep 
his  mind  open  to  every  suggestion  which  can  be  made  against  the 
validity  of  such  acts  of  the  Legislature,  but  with  his  present  infor- 
mation on  the  subject,  he  thought  that  the  law,  made  with  the  con- 
sent of  the  University,  establishing  the  board  of  overseers  as  it  is 
now  constituted,  was  as  immovable  as  the  constitution  itself.  The 
gentleman  from  Hingham  says  that  forty-six  members  of  the  board 
of  overseers,  composed  of  the  governor,  lieutenant  governor,  &c, 
may  be  overruled  hereafter  by  the  thirty  permanent  members.  It 
was  equally  true  that  fifty  can  overrule  one  hundred  and  fifty. 
The  gentleman  too  assumes,  what  is  not  to  be  presumed,  that  the 
fifteen  clergymen  and  fifteen  laymen  appointed  overseers,  will  be 
corrupt  men.  The  notion  that  confidence  cannot  be  placed  in  such 
men  is  subversive  of  all  boards.  If  any  wrong  is  done  by  them, 
the  people  can  choose,  the  next  year,  a  new  board  in  part,  which 
will  have  power  to  correct  the  errors  or  misdoings  of  the  former 
board.  A  great  part  of  the  members  from  the  State  government 
live  at  a  distance  from  the  College.  It  is  a  great  object  to  have  a 
permanent  body  to  overlook  the  proceedings  of  the  corporation,  and 
a  power  is  now  given  to  the  State  to  interfere  when  any  wrong  is 
required  to  be  corrected.  Abuses  would  take  place  if  there  were 
not  a  permanent  body  to  oversee,  and  there  might  be  danger  from 
this  permanent  body  if  it  could  not  be  controlled  by  the  govern- 
ment. Gentlemen  living  at  a  distance  cannot  conveniently  attend 
the  meetings  of  the  overseers,  but  a  new  rule  can  be  made,  requir- 
ing notice  to  be  given  so  many  days  before  the  time  for  meeting. 
Not  a  doubt  had  been  breathed  that  any  wrong  had  been  done  by 
the  corporation  or  overseers,  and  if  any  doubt  had  hitherto  existed, 
the  present  report  showed  that  it  was  without  just  cause. 

Mr.  Q,uincy,  in  reply  to  the  gentleman  from  Hingham,  said  he  was 
astonished  at  the  course  the  debate  had  taken.  He  before  under- 
stood that  that  gentleman  moved  to  strike  out  "Congregational ;  "  he 
now  understood  that  he  was  the  advocate  of  Congregationalists. 
He  now  objects  that  the  law  takes  away  from  the  Congregational 
ministers  of  the  six  neighboring  towns  their  vested  rights. 

Mr.  Richardson  explained.  He  said  his  ground  was,  that  if 
"Congregational"  should  be  struck  out  and  the  present  board  of 
overseers  should  not  be  perpetuated,  his  object  would  be  effected. 
If  the  board  should  be  perpetuated  it  would  not. 

Mr.  Quincy  said  that  he  understood  the  gentleman  according  to 
his  explanation — as  also  his  other  objection  that  the  fifteen  laymen 
and  fifteen  clergymen  placed  the  board  of  overseers  out  of  the  con- 
trol of  the  Legislature — which  was  just  saying  that  thirty  was  a 
majority  of  seventy-seven.  The  whole  shows  that  the  gentleman 
has  not  analyzed  political  with  the  same  attention  he  is  accustomed 
to  pay  to  theological  subjects.  His  objection,  as  now  urged,  was  to 
the  right  of  divesting  the  Congregational  ministers  of  the  six  neigh- 
69 


546  MASSACHUSETTS    CONVENTION. 

boring  towns : — whereas  his  former  objection  was  to  that  right 
being  confined  to  Congregational  ministers.  As  to  restoring  the 
right  to  the  six  towns,  as  such,  and  striking  out  "Congregational," 
it  was  obviously  impracticable.  The  effect  would  be  that  all  de- 
nominations of  every  description  would  be  introduced.  This  would 
bring,  at  the  present  moment,  forty-four  clergymen  into  the  board, 
instead  of  fifteen  as  at  present  constituted.  The  only  mode  by 
which  that  liberal  principle  of  introducing  gradually  other  denom- 
inations into  the  board,  would  be  effected,  was  that  existing  in  the 
present  constitution  of  the  College,  by  election.  If  the  right  was 
confined  to  the  six  towns,  and  all  denominations  admitted,  it  would 
make  a  board  in  which  the  clerical  part  would  outweigh  all  the 
other.  In  reply  to  the  objection  of  the  gentleman  from  Dracut, 
(Mr.  Varnum)  Mr.  Q,.  read  an  extract  from  the  Appendix  to  the 
College  charter,  passed  in  1656 — which  provides  that  the  board  of 
visitors  might  be  formed  without  summoning  those  members  whose 
habitations  were  at  a  distance,  which  had  been  construed  to  extend 
to  the  members  residing  in  the  six  neighboring  towns. 

Mr.  Dearborn  of  the  select  committee  on  the  subject,  said  he 
was  in  hopes  that  after  the  report  which  had  been  presented,  we 
should  have  heard  no  more  noise  about  Cambridge  College.  The 
government  of  the  College  acted  towards  the  committee  in  the  most 
liberal  manner.  They  were  disposed  to  keep  nothing  back.  They 
wanted  the  committee  to  investigate  more  than  the  late  period  of 
the  session  would  admit  of.  The  clause  containing  the  word  "Con- 
gregational," being  the  only  one  to  which  an  objection  had  been 
made,  he  hoped  the  resolution  would  have  removed  all  difficulty. 
He  asked,  how  could  it  be  said  that  the  people  had  not  the  power 
over  the  body  of  overseers,  when  they  elect  every  year  a  majority 
of  them  ?  What  were  the  facts  detailed  in  the  report  ?  That  the 
College  had  unexhausted  funds,  the  gift  of  the  State  to  the  amount 
of  £400  per  annum,  from  different  bridges  over  Charles  river,  and 
.$7000  in  wild  lands,  while  the  unexhausted  donations  of  individu- 
als were  $201,000.  One  would  think  that  these  donations  should 
entitle  the  donors  to  a  little  voice  in  the  management  of  the  con- 
cerns of  the  College,  and  that  the  civil  government  should  not  have 
the  whole  direction.  He  thought  it  was  proper  that  the  govern- 
ment should  have  some  surveillance,  and  the  present  constitution  of 
the  College  gave  them  sufficient.  No  evil  was  experienced,  and  the 
state  of  the  College  reflected  great  honor  on  the  government  of  it 
and  on  the  Commonwealth.  He  was  in  favor  of  the  rights  of  the 
people  as  well  as  other  gentlemen  ;  but  he  could  not  sit  quiet  and 
have  gentlemen  ask  one  day  for  one  thing,  and  say  they  should  be 
satisfied  with  it,  and  then  when  it  is  granted  to  them,  increase  in 
their  demands. 

Mr.  Tillinghast,  of  the  select  committee,  rose  to  express  dis- 
tinctly that  he  was  satisfied  perfectly  with  Cambridge  College. 
They  showed  a  liberality  far  beyond  his  expectation  or  wish  ;  they 
were   profuse  in  communicating  information.      It  was  as  well  man- 


MASSACHUSETTS     CONVENTION.  547 

aged  as  it  could  be  with  the  funds  it  possessed.  As  to  the  particu- 
lar denomination  of  the  College,  he  had  nothing  to  do  with  it.  He 
was  entirely  satisfied  with  their  liberality,  and  he  hoped  the  reso- 
lution would  pass  without  a  word  in  opposition  to  it. 

Mr.  Baldwin  of  Boston  said  he  was  not  only  satisfied  with  the 
luminous  report,  but  should  wish  to  give  both  his  voice  and  his 
vote  in  favor  of  the  resolution.  It  seemed  to  him  that  the  law  of 
1814  was  the  ground  on  which  the  institution  stood.  The  only 
objection  to  the  charter  was  the  restriction  respecting  the  clergy. 
He  had  objected  to  that,  but  not  on  his  own  account,  for  he  never 
expected  a  seat  at  the  board  of  overseers.  That  restriction  being 
taken  off,  he  was  entirely  satisfied.  He  had  known  that  young 
men  of  his  denomination  had  received  as  much  courtesy  at  the  Col- 
lege as  those  of  the  Congregational  denomination.  If  the  College 
got  into  the  hands  of  persons  of  different  sentiments  from  those  of 
the  original  founders,  that  was  none  of  his  business. 

Mr.  Boylston  of  Princeton  said  the  gentleman  from  Roxbury 
(Mr.  Dearborn)  had  nearly  anticipated  all  he  had  to  say.  He 
begged  gentlemen  to  consider  that  about  two  thirds  of  the  personal 
property  of  the  College  was  given  by  private  individuals  ;  of  which 
he  had  himself  contributed  a  small  part.  He  hoped  that  some  re- 
spect, some  consideration  would  be  given  to  the  donors  in  relation 
to  the  management  of  the  institution.  He  expressed  his  satisfaction 
with  the  resolution. 

Mr.  Austin  of  Charlestown  hoped  the  vote  would  be  unanimous 
on  this  resolution.  He  said  that  Harvard  was  from  the  town  he 
represented — that  the  government  originally  gave  £400,  and  the 
College  had  grown  up  under  the  patronage  of  the  Legislature.  The 
alteration  proposed  was  one  in  which  he  cordially  agreed.  The 
objection  which  had  been  made  respecting  the  constitution  of  the 
board  of  overseers,  had  been  answered  by  the  gentleman  from  Sa- 
lem. It  was  necessary  to  have  overseers  in  the  neighborhood. 
The  overseers  had  no  pay — the  office  was  rather  a  hardship,  although 
it  was  an  honor,  and  there  ought  to  be  no  jealousy  respecting  the 
board.  There  had  gone  forth  jealousies,  but  they  were  unfounded. 
The  College  was  the  ornament  of  the  land.  If  we  did  not  encourage 
it,  we  were  injuring  our  own  interest.  We  should  attract  young  men 
from  other  parts  of  the  country  instead  of  compelling  them  to  go  some- 
where abroad  for  an  education.  A  suspicion  had  gone  abroad  that 
the  College  had  enormous  funds.  There  was  no  foundation  for  it. 
He  was  informed  that  some  of  the  scholars  were  obliged  to  live  out 
of  the  Colleges  for  the  want  of  funds  to  erect  buildings  to  accom- 
modate them.  While  gentlemen  were  paying  liberally  for  the  sup- 
port of  a  particular  doctrine,  he  hoped  some  crumbs  might  fall  a 
little  to  the  westward.  He  had  formerly  entertained  prejudices 
against  the  College,  but  they  had  been  long  since  dissipated. 

Mr.  Dana  said  that  the  resolution  went  to  declare  that  the  rights 
and  privileges  of  the  College  should  be  confirmed  with  an  addition. 
He  was  readv  to  consent  to  it.     He  believed  that  if  a  new  govern- 


548  MASSACHUSETTS    CONVENTION. 

ment  were  to  be  formed  independent  of  existing  rights  and  privileges, 
a  better  could  not  be  devised.  As  to  the  corporation,  the  committee 
had  disclosed  one  of  the  most  extraordinary  and  honorable  facts  in 
the  history  of  this  institution.  It  had  existed  from  1636  to  the 
present  time,  and  not  a  single  delinquency  had  occurred  of  one  of 
its  officers.  The  organization  of  this  branch  of  the  government  he 
was  unwilling  to  change  in  the  smallest  degree.  They  might  have 
their  prejudices,  for  they  were  but  men.  But  the  affairs  of  the 
institution  must  be  managed  by  human  agents,  and  nothing  could 
be  devised  better.  As  to  the  board  of  overseers  was  there  a  suffi- 
cient popular  influence  ?  Of  the  seventy-six  members,  forty-six 
were  annually  chosen  by  the  people  or  by  the  Legislature.  They 
must  have  a  sufficient  control  and  oversight  of  the  concerns  of  the 
institution.  Nothing  could  be  done  secretly,  and  nothing  wrong 
could  be  done  which  they  could  not  overrule.  The  seeds  of  repub- 
licanism had  been  sown  so  long,  and  the  crop  was  so  great,  that 
contrary  principles  could  not  exist.  No  institution  could  exist 
without  the  support  of  the  public  sentiment.  How  long  could  the 
College  exist  without  the  assistance  of  the  Legislature  ?  The  grant 
of  $100,000  would  expire  in  four  years,  and  the  College  would  be 
obliged  to  come  back  to  the  Legislature  for  further  grants,  which 
could  annex  such  conditions  to  their  grants  as  they  should  see  fit. 
He  wished  to  dispel  all  prejudices,  and  to  induce  the  whole  public 
to  love  this  institution,  for  of  all  institutions  it  was  the  one  which  we 
ought  to  cultivate  the  most. 

Mr.  Hubbard  was  satisfied  with  the  first  report.  He  saw  no  ne- 
cessity of  making  any  alteration.  The  constitution  gives  to  the 
Legislature  the  power  of  appointing  the  board  of  overseers.  This 
power  has  existed  with  the  government  ever  since  the  existence  of 
the  College,  and  they  have  exercised  the  power.  It  is  a  public  in- 
stitution, and  the  public  ought  to  reserve  the  power  of  visitation,  or 
the  power  of  appointing  the  board  of  overseers.  They  retained  that 
power  to  the  year  1810.  The  board  of  overseers  until  that  time  con- 
sisted of  men  all  appointed  for  public  purposes,  including  the  Congre- 
gational ministers  of  the  six  neighboring  towns,  constituting  a  body 
of  men  of  education,  and  acquainted  with  the  interests  of  literature. 
The  Legislature  had  no  control  over  the  rights  and  privileges  vested 
by  the  charter  in  the  corporation,  but  had  the  right  of  visitation. 
He  contended  that  there  was  no  necessity  for  a  constitutional  pro- 
vision, relating  to  Congregational  clergymen.  There  was  no  right 
secured  to  them  which  was  not  equally  secured  to  the  ministers  of 
the  six  towns.  He  referred  to  the  article  of  the  constitution  to  show 
that  they  both  stand  on  the  same  constitutional  right.  If  the  Leg- 
islature can  take  away  the  right  of  the  ministers  of  the  six  towns, 
they  can  also  take  away  the  exclusive  rights  of  the  Congregational 
order.  Until  the  year  1810,  it  was  always  in  the  power  of  the  Leg- 
islature to  change  the  board  of  overseers  without  their  consent. 
There  never  was  an  act  until  that  time  when  the  consent  of  the 
overseers  was  required.     The   inference   to  be  drawn  hereafter  is, 


MASSACHUSETTS    CONVENTION.  549 

that  no  alteration  shall  be  made  without  the  consent  of  the  corpora- 
tion and  overseers.      By  this  report  it  is  said  they  consent.      He  was 
not  disposed  to  adopt  this  resolution.     The  board  of  overseers  ought 
to  be  under  the  control  of  the  Legislature.     It  was  a  public  institu- 
tion supported  by  the  public  with  the  aid  of  private  donations.     Al- 
though the  corporation  and  board  of  overseers  consist  of  men,  who 
are  wise  and  virtuous,  he  would  not  take  away  from  future  legisla- 
tures the  power  to  interfere.     The  report  the  other  day  was  sup- 
ported by  the  friends  of  the  College,  on  the  principle  that  its  char- 
tered rights  are  protected  already.     If  so,  they  require  no  constitu- 
tional confirmation,  and  he  hoped  that  no  alteration  would  be  made. 
Mr.  Webster  doubted  whether  the  member  last  speaking  (Mr. 
Hubbard)  would,  on  further  consideration,    incline  to  be  bound  by 
the  opinion  which  he  had  now  expressed,  as  to  the  legal  rights, 
arising  under  the  several  laws  and  charters.     He  supposes  that  the 
Legislature  has  full  power  to  alter  and  modify  the  board  of  overseers, 
at  pleasure,  without  its  assent,  or  that  of  the  president  and  fellows. 
But  on  this  point,  there  was  known  to  have  been  great  diversity  of 
opinion.     Legal  characters  of  the  first  distinction   had  heretofore 
been  consulted,  and  had  come  to  a  different  result,  from  that  of  the 
honorable  member.     If  the  board  of  overseers  were  visitors,  in  the 
common  legal  acceptation  of  that  term,  there  would  be  great  diffi- 
culty, he  thought,  in  maintaining  this  right  of  the  Legislature  to 
interfere  at  pleasure.     The    general    principle   certainly  was,  that 
when  either  the  government  or  an  individual  founded  a  College,  or 
other  charity,  and  vested,  in  certain  individuals,  or  in  a  corporation, 
the  property  and  government  of  the  charity,  the  power  of  the  founder 
had  ceased,  and  was  at  an  end ;   except  so  far  as  it  might  have  been 
specially  reserved.     The  power  of  visitation  springs  from  the  prop- 
erty ;  like  property  it  is  transferable   by  the  grant  of  the  founder, 
nor  can  it,  in  general,  be  revoked,  any  more  than  the  grant  of  the 
property  may  be   revoked.     Therefore,   if,  in  the  institution  of  the 
College,  the  government  had  vested  the  power  of  visitation,  strictly 
speaking,  in  the  overseers,  it  certainly  was  very  questionable  whether 
it  could  properly  revoke  it,  without  their  assent ;  and  as  the  over- 
seers are  persons  who  take  that  trust  by  official  succession,  it  might 
not  be  easy  to  see  how  they  could  give  an  assent  which  should  bind 
their  successors.     He,  (Mr.  W.)  was  rather  inclined  to  think  that 
the  overseers  were  not   visitors,  as  the  common   law  understands 
that  term.     Originally,  they  appear  to  have  been  mere  public  agents 
to  superintend   the   public    donation  ;    and  when,   afterwards,  the 
charter  was  granted,  and  the  president  and  fellows  incorporated,  and 
vested  with  powers  of  government,  it  was  nevertheless  provided, 
that  all  their  acts  should  be  subject  to  the  approbation  or  disappro- 
bation  of  the  board  of '  overseers.      This  was  not  analogous  to  the 
case  of  usual  visitatorial  powers.      It  was  important  to  observe,  that 
here  being  a  charter,  by  which  not  the  scholars,  or  those  who  were 
to  receive  the   benefit  of  the  funds  were  incorporated,  but  certain 
trustees,  who  were  to  hold  the  funds,  for  the  use  and  benefit  of  the 


550  MASSACHUSETTS    CONVENTION. 

scholars,  no  power  of  visitation  in  this  case  results  to  the  founder, 
by  the  operation  of  law.  He  has  parted  with  all,  as  well  the  gov- 
ernment as  the  property,  except  so  far  as  he  has  expressly  reserved 
it.  In  general,  too,  visitors  inspect  and  regulate  the  actions  of  those 
who  partake  of  the  bounty,  and  not  of  the  trustees.  Indeed  there 
are  no  visitors,  where  there  are  trustees,  unless  expressly  provided 
for  in  the  charter  or  statutes.  The  power  of  visitors,  even  where 
they  exist  by  the  charter,  is  not  usually  concurrent  with  that  of  the 
trustees  or  fellows.  They  maintain  a  general  inspection  ;  in  some 
cases  make  periodical  visitation,  hear  complaints  of  grievances,  and 
redress  them,  and  entertain  appeals,  from  the  trustees  or  fellows,  or 
those  who  possess  the  immediate  government  of  the  society.  But  in 
this  case  the  overseers  possess  a  power  of  approving  or  disapproving 
every  act  of  the  fellows,  by  the  original  charter.  This  not  being  a 
regular  visitatorial  power,  it  might  seem  to  follow,  either  that  the 
overseers  were  an  integral  part  of  the  corporation  itself;  or  else,  a 
board  of  public  agents,  to  whose  control,  in  all  cases,  the  fellows  by 
their  charter  were  expressly  made  liable.  In  the  first  case,  it  would 
be  exceedingly  doubtful  whether  the  Legislature  could  change  the 
board  without  its  own  consent  ;  and  doubtful,  too,  how  that  consent 
could  be  given  ;  and,  in  the  other  case,  it  had  been  argued  with 
great  plausibility,  to  say  no  more  of  it,  that  as  the  president  and 
fellows  received  their  charter  on  condition  of  being  subject  to  a 
board  of  overseers,  constituted  in  a  particular  manner,  one  of  them- 
selves always  to  be  a  member  of  it,  their  consent  should  be  obtained, 
before  an  alteration  could  properly  be  made,  either  in  the  numbers 
or  constitution  of  that  board.  He,  (Mr.  W.)  intended  to  express  no 
opinion  on  these  questions,  although  he  had  studied  them  with  some 
diligence.  There  was,  no  doubt,  room  for  difference  of  sentiments. 
The  original  laws  and  charters  were  very  short  and  imperfect ;  and 
much  was  left  to  construction.  The  committee  thought  the  course 
of  wisdom  was  to  examine  the  actual  government  of  the  College  as 
it  existed  at  the  present  moment,  under  the  various  provisions  of  the 
charters  and  laws,  and  finding  that  government  to  be  a  fit  and 
proper  one,  to  establish  and  confirm  it.  He  sincerely  hoped  the 
Convention  would  concur  in  this  sentiment.  Nothing  could  be 
more  injurious  to  the  College,  or  indeed  to  the  public,  than  that 
such  an  institution  should  rest  on  a  litigious  or  doubtful  foundation. 
The  College,  in  both  boards,  had  assented  to  the  alteration  now 
recommended.  No  other  or  further  change  seemed  to  be  desired 
by  anybody,  and  universal  satisfaction  might  be  well  anticipated, 
he  trusted,  from  the  adoption  of  the  resolution. 

Mr.  Qjtincy  said  a  few  words  in  favor  of  the  resolution. 

Mr.  Richardson  called  for  a  division  of  the  resolution  for  the  pur- 
pose of  taking  the  question  on  the  first  part. of  it. 

The  Chairman  declared  it  to  be  incapable  of  a  division. 

Mr.  Hubbard  said  that  formerly  an  act  of  the  Legislature  had 
passed  by  which  the  board  of  overseers  was  enlarged  so  as  to  take 
in  the  ministers  of  Salem,  Danvers,  and  other  towns. 


MASSACHUSETTS    CONVENTION.  551 

The  question  was  taken  on  agreeing  to  the  resolution  and  decided 
in  the  affirmative — 227  to  44. 

The  committee  rose  and  reported  their  disagreement  to  the  reso- 
lution for  restricting  the  appointment  to  office  of  persons  who  were 
counsellors — for  regulating  the  law  of  libel — and  to  restrict  the 
power  of  granting  bank  charters — and  their  agreement  to  the  reso- 
lutions relative  to  the  salaries  of  certain  officers  and  to  the  charter 
of  Harvard  College. 

The  Convention  concurred  with  the  committee  in  their  disagree- 
ment to  the  three  first  resolutions,  and  on  the  question  whether  a 
time  should  be  assigned  for  the  first  reading  of  the  resolution  rela- 
tive to  the  salaries  of  the  governor  and  judges, 

Mr.  Story  said  that  the  necessary  result  of  the  adoption  of  the 
resolution  would  be  a  complete  and  entire  prostration  of  the  whole 
judiciary.  Everything  in  the  constitution,  for  securing  the  inde- 
pendence of  the  judiciary,  was  completely  annihilated.  Any  Legis- 
lature without  the  power  of  removal  may,  by  passing  a  law  to  reduce 
the  salaries,  remove  the  whole  bench  of  judges.  It  applied  to  the 
present  judges  and  was  a  violation  of  the  contract  of  every  judge 
now  in  office  with  the  State  ;  it  was  a  violation  of  the  constitution 
of  the  United  States,  by  undertaking  to  violate  one  of  the  most 
solemn  contracts  ever  entered  into.  There  was  also  the  greatest 
injustice  in  it ;  there  was  not  a  gentleman  on  the  bench  who  had 
not  made  great  sacrifices  in  leaving  a  lucrative  profession  to  accept 
this  office.  It  would  be  a  complete  violation  of  their  contract  with 
the  State,  and  take  away  the  compensation  for  the  sacrifices  they 
had  made.  What  man  hereafter  of  any  eminence  in  his  profession 
would  accept  an  appointment  to  the  office,  if  it  depended  on  the 
breath  of  the  Legislature  to  say  whether  the  salary,  whatever  it 
might  be,  should  be  reduced  to  nothing. 

Mr.  Webster  interrupted.  He  believed  the  object  of  the  mover 
had  been  misapprehended. 

Mr.  Fisher  of  Westborough  said  he  had  offered  this  resolution 
because  the  constitution  gave  the  authority  to  increase  the  salaries 
of  the  officers  named,  and  it  had  been  doubted  whether  they  had 
authority  to  diminish  them.  He  thought  the  rule  ought  to  operate 
both  ways.  His  idea  was  that  it  should  not  operate  on  gentlemen 
that  held  an  office  ;  he  thought  it  was  always  understood,  that  the 
Legislature  should  not  have  the  power  to  reduce  the  salary  while 
the  person  who  held  the  office  was  in. 

Mr.  Story  said  it  was  in  the  power  of  the  Legislature  to  alter  the 
salary  in  relation  to  the  governor  and  all  officers  but  those  who  hold 
under  the  tenure  of  good  behavior,  and  the  salary  of  judges  may  be 
reduced  for  a  future  officer.  All  that  is  fair  and  reasonable  can  be 
effected  now.  But  the  objection  was,  when  a  judge  comes  into 
office,  on  a  salary  of  $3000,  it  may  the  next  year  be  reduced  to 
$100.  He  did  not  object  merely  that  it  applied  to  the  present 
judges  but  to  all  future  judges.     It  was  enabling  a  popular  man  to 


552  MASSACHUSETTS    CONVENTION. 

hold  up  his  finger  to  the  judge  trying  his  cause,  and  say,  your  live- 
lihood depends  on  your  deciding  this  cause  in  my  favor. 

Mr.  Prescott  again  interrupted  the  speaker.  The  proposition 
was  entirely  misunderstood.  It  was  intended  by  the  mover  to  be 
prospective. 

Mr.  Story  said  the  proposition  admitted  of  no  misunderstanding. 
He  could  only  take  it  as  it  was.  If  the  gentleman  wished  to  make 
an  alteration  that  would  apply  to  the  case  of  an  officer  afterwards 
to  be  appointed,  he  could  submit  such  a  proposition. 

Mr.  Fisher  said  he  would  withdraw  the  resolution. 

The   President   said   it   could  not   be  withdrawn.     After  some 
further  conversation  the  Convention  refused  to  assign  a  time  for  a 
,  first  reading  of  the  resolution. 

The  resolution  relating  to  the  charter  of  Harvard  College  was 
read  a  first  time  and  passed,  and  10  o'clock  to-morrow  assigned  for  a 
second  reading. 

Mr.  Alvord  of  Greenfield  moved  to  reconsider  the  vote  on  the 
second  resolution  relating  to  the  senate  in  the  second  reading,  for 
the  purpose  of  proposing  an  amendment  which  he  stated.  After 
some  debate  the  vote  was  reconsidered. 

Mr.  Alvord  moved  to  amend  the  resolution  by  adding,  "  and  that 
the  senators  be  so  apportioned  among  the  said  district  as  that  no 
district  may  elect  more  than  six." 

Mr.  A.  said  that  although  there  was  this  limitation  in  the  present 
constitution,  a  true  construction  of  the  amendments  now  agreed  to, 
would  be  to  repeal  that  limitation.  He  concluded  therefore  that 
the  limitation  ought  to  be  incorporated  into  the  amendment,  and 
for  that  purpose  he  had  proposed  this  amendment. 

Mr.  Prescott  said,  that  to  remove  all  doubt  he  wished  the  amend- 
ment might  be  adopted. 

The  amendment  was  agreed  to,  and  the  resolution,  as  amended, 

passed. 

The  first  reading  of  the  resolutions  relating  to  the  declaration  of 
rights  was  assigned  to  half  past  10  o'clock  to-morrow. 

Mr.  Sturgis  gave  notice  that  he  should  to-morrow  move  to  rescind 
that  part  of  the  rule  which  requires  that  two  readings  of  any  prop- 
osition to  amend  the  constitution,  be  on  different  days. 

The  resolutions  relative  to  the  lieutenant  governor  and  council 
were  severally  read  and  passed. 

The  resolution  relating  to  the  qualifications  for  voters  was  read  a 
second  time. 

Mr.  Boylston  opposed  the  resolution.  He  said  it  would  materi- 
ally affect  the  elections  in  some   towns,  particularly  manufacturing 

towns. 

Mr.  Leland  moved  to  strike  out  the  word  "therein"  and  insert 
"  within  any  town  or  district  in  the  Commonwealth." 

Mr.  Dana  said  the  resolution  at  present  did  not  accord  with  the 
views  of  the  committee  who  reported  it.     They  did  not  mean  to 


MASSACHUSETTS    CONVENTION.  553 

make  it  necessary  that  the  tax  should  be  paid  in  the  town  where 
the  vote  was  offered. 

Mr.  Rantoul  of  Beverly  opposed  the  amendment  on  account  of 
the  inconvenience  it  would  occasion  in  practice.  The  selectmen 
would  be  obliged  to  decide  on  the  qualifications  of  the  voter  and 
would  have  no  means  of  judging. 

Mr.  Varnum  supported  the  amendment.  It  would  be  incumbent 
on  the  voter  to  produce  the  evidence  of  his  right. 

Mr.  Martin  was  opposed  to  the  amendment  and  resolution  al- 
together. 

The  amendment  was  agreed  to — 13  to  90. 

Mr.  Webster  moved  to  amend  by  adding  the  words,  "to  the 
Commonwealth."  Mr.  W.  was  willing  to  agree  to  the  principle  on 
which  this  resolution  had  been  supported,  that  every  person  who 
contributes  to  the  support  of  government  shall  be  entitled  to  vote — 
but  the  principle  was  departed  from  if  they  were  not  required  to 
pay  a  tax  to  the  Commonwealth. 

Mr.  Sibley  of  Sutton  opposed  the  amendment.  He  hoped  that 
we  should  not  always  have  to  pay  a  Commonwealth  tax.  In  that 
case  we  should  none  of  us  be  voters. 

Mr.  Webster  said  that  we  always  had  been  obliged  to  pay  state 
taxes,  and  he  presumed  that  until  the  millennium  we  always  should. 
After  a  considerable  debate,  in  which  Messrs.  Dana,  Tillinghast, 
Nichols,  Webster,  Starkweather,  Varnum,  Blake,  Thorndike, 
Lawrence  of  Leominster,  Martin,  Lincoln,  Apthorp,  Salton- 
stall,  Childs  and  Turner,  took  a  part,  Mr.  Webster  modified  his 
amendment  so  as  to  read,  "state  or  county  tax  of  this  Common- 
wealth/'    The  amendment  was  agreed  to. 

Mr.  Saltonstall  moved  to  amend  by  striking  out  "six"  and 
inserting  "  twelve  "  months  as  the  term  of  residence  in  any  town  as 
a  qualification  for  a  voter. 

Mr.  Lincoln  opposed  the  amendment. 

Mr.  Lawrence  of  Groton  and  Mr.  Martin  spoke  in  favor  of  it. 

Mr.  Dana  said  that  the  practical  effect  of  the  amendment  would 
be  to  require  in  most  cases  a  residence  of  eighteen  months. 

The  amendment  was  agreed  to — 129  to  124. 

Mr.  Lincoln  gave  notice  that  he  should  to-morrow  move  for  a  re- 
consideration of  the  last  vote  ;  and 

At  half-past  3  the  House  adjourned. 


Saturday,  January  6. 
The  House  met  at  half-past  9  o'clock,  and  the  journal  of  yester- 
day was  read. 

The  House  proceeded  to  the  further  consideration  of  the  resolu- 
tion which  was  under  discussion  yesterday  upon  the  second  reading, 
relating  to  the  qualifications  of  voters  for  civil  officers. 

Mr.  Lincoln  of  Worcester,  in  conformitv  to  the  notice   he   gave 
70 


554  MASSACHUSETTS    CONVENTION. 

yesterday,  made  a  motion  to  reconsider  the  vote  by  which  the 
amendment  was  adopted,  proposed  by  the  gentleman  from  Salem, 
requiring  twelve  instead  of  six  months'  residence  in  the  town  where 
the  vote  was  to  be  given.  Mr.  L.  observed  that  as  the  constitution 
now  stands,  no  term  of  residence  was  required  for  voters  for  gov- 
ernor, &c,  and  one  year's  residence  in  the  town,  was  required  for 
voters  for  representatives.  As  both  these  classes  of  voters  were 
embraced  in  the  resolution  there  seemed  to  be  a  propriety  in  taking 
six  months,  as  the  mean  between  the  qualifications  of  voters  for 
governor,  &c,  and  of  voters  for  representatives,  in  regard  to  resi- 
dence. The  operation  of  the  amendment  which  had  been  adopted, 
would  be  to  require  in  many  cases  a  residence  of  eighteen  months, 
on  account  of  the  elections  being  held  in  November.  This  effect 
would  bear  upon  a  large  and  respectable  class  of  farmers,  who  from 
the  course  of  husbandry  are  in  the  habit  of  taking  farms  and  chang- 
ing their  residence  in  the  spring.  It  would  be  hard  to  deprive  this 
class  of  men,  fpr  so  long  a  time,  of  their  right  of  voting,  merely 
for  going  from  one  town  into  another ;  and  he  believed  there  was 
not  a  gentleman  in  the  House  who  would  not  reject  the  proposition 
if  it  was  brought  home  to  himself;  if  it  was  proposed  that  he 
should  lose  his  vote,  or  be  compelled  to  move  in  November,  the 
most  inconvenient  season  in  the  year.  If  it  was  required  only  that 
a  voter  should  reside  twelve  months  in  the  Commonwealth,  he 
should  assent  ;  but  to  provide  that  the  residence  for  that  term  should 
be  in  the  town  where  the  election  is  to  be  held,  was  inexpedient 
and  unjust. 

Mr.  Leland  of  Roxbury  said  it  was  important  in  providing  for 
qualifications  of  voters,  to  make  the  rule  as  simple  as  possible. 
Whether  a  voter  had  a  residence  or  not  would  be  a  question  of  fact 
to  be  determined  by  the  selectmen,  and  if  six  months'  residence 
only  was  required,  as  the  taxes  were  assessed  in  May,  and  the  elec- 
tions were  to  be  held  in  November,  the  selectmen  would  only  have 
to  look  at  the  books  of  the  assessors  for  proof  of  the  residence.  It 
would  be  matter  of  record ;  but  if  the  time  was  enlarged,  the  se- 
lectmen would  have  to  resort  to  a  different  and  less  satisfactory 
kind  of  evidence.  He  hoped  the  motion  to  reconsider  would  pre- 
vail. 

Mr.  Saltonstall  said  his  design  was  to  prevent  vagrants  and 
strangers  from  voting,  who  had  no  knowledge  or  interest  in  our 
state  concerns.  He  should  however  wish  the  vote  to  be  reconsid- 
ered, in  order  that  he  might  substitute  an  amendment,  which  he 
thought  might  accord  with  the  views  both  of  the  gentleman  from 
Worcester,  and  the  gentleman  from  Roxbury.  He  should  move  to 
amend  so  as  to  require  a  residence  of  a  year  in  the  Commonwealth 
and  six  calendar  months  in  the  town  or  district  where  the  election 
was  held. 

The  vote  was  reconsidered  and  Mr.  Salltonstall  moved  his  new 
amendment. 

Mr.  Varnum  of  Dracut  hoped  it  would  not  prevail.     He  said  that 


MASSACHUSETTS    CONVENTION.  555 

men  who  come  into  the  State  to  let  themselves  out  to  labor,  usually 
ca»e  in  April  and  were  taxed  in  May  for  the  whole  year,  and  they 
ought  to  have  a  right  to  vote  after  six  months'  residence.  The 
usual  term  of  hiring,  however,  was  for  six  months,  so  that  nine 
tenths  of  such  laborers  would  be  gone  out  of  the  Commonwealth 
before  the  time  of  the  elections. 

Mr.  Apthorp  of  Boston  said  he  was  in  favor  of  the  amendment 
adopted  yesterday  and  had  advocated  it  in  the  committee — but  it 
had  not  been  his  good  fortune  to  be  in  the  majority  in  the  commit- 
tee. It  should  be  recollected  that  this  resolution  abolishes  the  pe- 
cuniary qualification  required  in  the  constitution.  There  would  be 
some  difficulty  in  settling  the  fact  of  residence,  and  the  longer  the 
time  required  the  better  would  probably  be  the  character  of  the 
voter,  and  the  better  chance  would  the  selectmen  have  of  ascertain- 
ing his  qualifications.  He  should  vote  against  the  amendment  for 
the  purpose  of  substituting  nine  months'  residence. 

Mr.  Saltonstall  said  the  gentleman  from  Dracut  might  not 
have  experienced  the  evil  which  was  often  felt  by  the  large  towns, 
of  hundreds  of  men  coming  in  from  New  Hampshire  in  the  spring 
and  voting  in  our  elections,  just  after  they  have  voted  in  the  elec- 
tions in  their  own  state.  Requiring  a  year's  residence  in  the  Com- 
monwealth was  reasonable,  in  order  that  we  may  know  them  and 
that  they  may  become  domiciliated.  No  complaint  had  ever  been 
made  in  requiring  a  year's  residence  to  entitle  a  person  to  vote  for 
representatives.  Was  there  anything  unreasonable  in  denying  to 
these  birds  of  passage  all  those  rights  and  privileges  belonging  to  a 
fixed  residence  ?  The  gentleman  from  Dracut  seemed  to  think  that 
the  right  of  voting  was  the  only  equivalent  for  paying  a  tax.  Mr.  S. 
said  the  provision  in  the  amendment  appeared  to  him  one  of  the 
most  reasonable  and  best  that  could  be  devised.  The  year's  resi- 
dence in  the  Commonwealth  would  give  the  voters  an  opportunity 
of  becoming  acquainted  with  the  character  of  the  candidates,  and 
the  six  months"  residence  in  the  town  would  enable  the  assessors  to 
become  acquainted  with  the  voters  to  assess  their  taxes. 

Mr.  Martin  spoke  against  the  amendment  and  the  resolution.  He 
preferred  the  old  constitution. 

Mr.  Hoyt  of  Deerfield  said  he  hoped  if  the  resolution  should 
pass,  that  twelve  months'  residence  would  be  required,  but  he  pre- 
ferred the  provision  in  the  constitution.  This  resolution  would  de- 
prive many  persons  of  the  privilege  of  voting,  who  were  possessed 
of  but  little  property,  whom  the  assessors  in  their  discretion  usually 
omit  to  assess.  In  regard  to  persons  under  guardianship,  he  said 
there  were  some  who  pay  taxes  and  who  ought  to  have  a  right  to 
vote ;  for  instance,  a  man  put  under  guardianship  for  intemperance, 
who  becomes  temperate,  but  yet  requires  a  rod  to  be  held  over  him 
to  keep  him  from  relapsing. 

Mr.  Blake  was  in  favor  of  the  resolution  as  reported  by  the  com- 
mittee and  against  the  amendment.     Transient  persons  would  not 


556  MASSACHUSETTS     CONVENTION. 

have  the  right  of  suffrage  wherever  they  happened  to  be.  It  was 
requisite  that  they  should  be  citizens. 

Mr.   B.   was  answered  that  by  the  constitution  of  the  United 

States  the  citizens  of  one  state   have  the  rights  of  a  citizen  in  any 

other.  . 

Mr.  B.  proceeded.  In  looking  over  the  constitutions  ot  the  other, 
states,  he  found  that  in  most  of  them,  nothing  but  an  inhabitancy 
was  required.  If  a  person  resided  here  six  months  and  paid  a  tax 
he  ought  to  have  a  right  to  vote,  as  much  as  if  he  had  had  a  year's 
residence.  He  should  be  unwilling  to  have  Massachusetts  on  a  less 
favorable  footing  than  her  sister  states,  in  regard  to  this  fundamental 
privilege  of  a  freeman. 

Mr.  Lincoln  said  in  answer  to  the  gentleman  from  Dracut,  that 
since  yesterday  he  had  become  satisfied  that  a  person  coming  from 
another  state  into  this  Commonwealth,  to  let  himself  out  to  labor 
for  six  months,  with  an  intention  of  returning  when  his  term  of 
service  expires,  had  no  interest  in  the  government ;  that  he  was 
merely  the  creature  of  his  employer.  With  respect  to  persons  hav- 
ing a  permanent  residence  in  the  Commonwealth,  this  resolution 
would  permit  a  man  going  from  a  town  in  one  extremity  of  the 
Commonwealth  to  a  town  in  the  other,  to  have  the  same  right  of 
voting  in  the  latter,  by  residing  there  six  months,  that  he  would 
have  had  in  the  former,  if  he  had  not  changed  his  residence.  In 
answer  to  the  gentleman  from  Boston,  he  observed  that  this  amend- 
ment did  not  alter  the  principle  in  the  resolution  reported  by  the 
committee.  The  qualification  of  residence  did  not  affect  the  pecu- 
niary qualification.  In  answer  to  the  gentleman  from  Deerfield, 
who  preferred  the  constitution  as  it  is,  he  said  it  was  necessary  to 
make  some  change  in  the  qualification  of  voters  to  conform  to  the 
alteration  adopted  respecting  the  union  of  towns  for  the  choice  of 
representatives.  He  was  in  favor  of  this  amendment,  in  whatever 
view  he  might  regard  the  whole  resolution. 

The  amendment  was  adopted — 297  to  2. 

The  resolution  then  passed  as  amended. 

The  resolution  respecting  Harvard  College  was  read  a  second 
time  and  passed  without  a  division. 

The  House  proceeded  to  the  consideration  of  the  resolutions  of 
the  select  committee  on  the  declaration  of  rights,  as  reported  by  a 
committee  of  the  whole. 

The  first  resolution  was  read  as  follows : 

Resolved,  That  it  is  proper  and  expedient  so  far  to  alter  and  amend  the  constitu- 
tion of  this  Commonwealth,  in  the  declaration  of  rights,  as  to  provide,  that  the  word 
"citizen"  or  "person"  he  substituted  for  the  word  "subject"  where  it  occurs 
in  the  said  declaration  in  the  sense  of  either  of  the  first  mentioned  words  respect- 
ively. 

This  resolution,  which  was  disagreed  to  in  committee  of  the 
whole,  was  refused  a  second  reading. 

The  second  resolution  which  was  agreed  to  in  committee  of  the 
whole,  viz.: 


MASSACHUSETTS    CONVENTION.  557 

Resolved,  That  it  is  proper  and  expedient  further  to  amend  and  alter  the  constitu- 
tion so  as  that  part  which  invests  the  Legislature  with  power  to  enjoin  on  individuals 
an  attendance  on  public  worship,  may  be  annulled,  and  rendered  no  longer  obliga- 
tory, 
was  read  and  passed  to  a  second  reading. 

The  third  resolution  agreed  to  in  committee  of  the  whole  was 
read  as  follows,  viz.  : 

Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  constitu- 
tion so  as  to  provide,  that,  as  the  happiness  of  a  people  and  the  good  order  and  pres- 
ervation of  civil  government,  essentially  depend  upon  piety,  religion,  and  morality, 
and  as  these  cannot  be  generally  diffused  througli  a  community  but  by  the  institution 
of  the  public  worship  of  God,  and  of  public  instruction  in  piety,  religion  and  morality  : 
Therefore,  to  promote  their  happiness,  and  to  secure  the  good  order  and  preservation 
of  their  government,  the  people  of  this  Commonwealth  have  a  right  to  invest  their 
Legislature  with  power  to  "authorize  and  require,  and  the  Legislature  shall  from  time 
to  time  authorize  and  require  the  several  towns,  parishes,  precincts,  and  other  bodies 
politic,  and  religious  societies,  incorporated  and  unincorporated,  to  make  suitable 
provision  at  their  own  expense  for  the  institution  of  the  public  worship  of  God,  and 
for  the  support  and  maintenance  of  public  Christian  teachers  of  piety,  religion,  and 
morality,  in  all  cases  where  such  provision  shall  not  be  made  voluntarily. 

Provided,  notwithstanding,  that  the  several  towns,  parishes,  precincts,  and  other 
bodies  politic,  and  religious  societies,  incorporated  and  unincorporated,  shall,  at  all 
times,  have  the  exclusive  right  of  electing  their  public  teachers,  and  of  contracting 
with  them  for  their  maintenance. 

Mr.  Childs  of  Pittsfield  moved  to  amend  by  substituting  for  the 
third  and  fourth  resolutions,  the  following,  viz.  : 

As  the  happiness  of  a  people  and  the  good  order  and  preservation  of  civil  govern- 
ment, essentially  depend  upon  piety,  religion,  and  morality ;  and  as  these  cannot  be 
generally  diffused  through  a  community,  but  by  the  public  worship  of  God  ;  and  as 
the  public  worship  of  God  will  be  best  promoted,  by  recognizing  the  inalienable 
right  of  every  man  to  render  that  worship  in  the  mode  most  consistent  with  the  dic- 
tates of  his  own  conscience :  Therefore,  no  person  shall  by  law  be  compelled  to  join 
or  support,  nor  be  classed  with,  or  associated  to,  any  congregation  or  religious  soci- 
ety whatever  ;  but  every  person  now  belonging  to  any  religious  society,  whether 
incorporated  or  unincorporated,  shall  be  considered  a  member  thereof  until  he  shall 
have  separated  himself  therefrom  in  the  manner  hereinafter  provided.  And  each  and 
every  society  or  denomination  of  Christians  in  this  State  shall  have  and  enjoy  the 
same  and  equal  power,  rights,  and  privileges,  and  shall  have  power  and  authority  to 
raise  money  for  the  support  and  maintenance  of  religious  teachers  of  their  respective 
denominations,  and  to  build  and  repair  houses  of  public  worship,  by  a  tax  on  the 
members  of  any  such  society  only,  to  be  laid  by  a  major  vote  of  the  legal  voters 
assembled  at  any  society  meeting,  warned  and  held  according  to  law. 

Provided,  nevertheless,  that  if  any  person  shall  choose  to  separate  himself  from 
the  society  or  denomination  to  which  he  may  belong,  and  shall  leave  a  written  notice 
thereof  with  the  clerk  of  such  society,  he  shall  thereupon  be  no  longer  liable  for  any 
future  expenses  which  may  be  incurred  by  said  society. 

And  every  denomination  of  Christians  demeaning  themselves  peaceably  and  as 
good  citizens  of  the  Commonwealth,  shall  be  equally  under  the  protection  of  the 
law  ;  and  no  subordination  of  any  one  sect  or  denomination  to  another  shall  ever  be 
established  by  law. 

Mr.  Childs  said  this  resolution  was  in  substance  the  same  as  the 
one  he  had  before  offered,  which  was  discussed  in  committee  of  the 
whole.  He  did  not  wish  to  take  up  the  time  of  the  House;  he 
would  only  say  that  he  remained  of  the  same  opinion.  It  was  the 
object  of  the  whole  Convention  to  have  public  worship  supported ; 
members  differed  only  about  the  means  of  coming  at  it.  This  reso- 
lution was  in  his  view  better  adapted  for  that  purpose  than   the 


558  MASSACHUSETTS    CONVENTION. 

provisions  in  the  constitution.  He  moved  that  the  question  on  the 
amendment  be  taken  by  yeas  and  nays.  Agreed  to — 104  voting  in 
favor. 

Mr.  Tillinghast  of  Wrentham  spoke  in  favor  of  the  amendment. 
There  was  a  general  tendency  in  the  public  mind  to  toleration. 
The  country  would  never  be  happy,  and  enjoy  pure  and  undefiled 
religion,  until  every  rag  of  this  thing  called  superstition,  bigotry, 
and  law  religion,  were  stripped  from  off  the  civil  arm.  Religion 
would  always  be  supported,  if  it  was  of  sufficient  consequence  to  be 
supported.  Religion  was  essential  to  the  support  of  civil  govern- 
ment, but  there  was  no  necessity  for  its  being  connected  with  it. 

Mr.  Enoch  Mudge  of  Lynn  rose  merely  for  the  purpose  of  cor- 
recting an  error  in  a  statement  made  on  a  former  day  by  the  gentle- 
man from  Boston,  (Mr.  J.  Phillips)  that  the  Congregationalists  in 
this  State,  were  to  all  other  denominations  in  the  proportion  of  450 
to  150.  Mr.  M.  said  there  were  of  Congregationalists  373  societies, 
Baptists  153,  Methodists  67,  Friends  39,  Episcopalians  22,  Univer- 
salists  21,  of  other  sects  23  ;  making  the  Congregational  societies 
to  all  other  societies  in  the  proportion  of  373  to  325 ;  and  he  be- 
lieved it  would  be  found  that  there  was  even  less  difference  than 
this,  if  there  were  means  for  ascertaining  the  numbers  accurately. 

Mr.  Lincoln  of  Boston  said  the  amendment  of  the  gentleman 
from  Pittsfield  contained  the  substance  of  what  he  wanted,  but  it 
was  not  altogether  agreeable  in  its  details.  It  contained  the  general 
principle  of  exemption  from  compulsory  taxation  for  the  support  of 
religion.  In  the  New  Testament,  our  Saviour  says  his  kingdom  is 
not  of  this  world.  We  had  no  right  to  interfere  in  the  kingdom  of 
Christ.  He  firmly  believed  that  if  this  provision  in  the  constitu- 
tion was  expunged,  we  should  have  less  corruption  and  litigation, 
and  religion  would  be  better  supported.  If  he  did  not  believe  this, 
he  should  be  the  last  to  raise  his  voice  in  favor  of  it ;  but  he  sin- 
cerely believed  the  political  salvation  of  the  Commonwealth  de- 
pended upon  it.  It  was  better  that  the  government  should  be  sup- 
ported by  religion  than  religion  by  the  government.  Our  religion 
was  a  persuasive  one ;  and  it  was  better  to  leave  it  to  the  influence 
of  persuasion.  The  report  of  the  select  committee  was  too  indefi- 
nite. It  gave  the  Legislature  unlimited  power  to  say  in  what  man- 
ner suitable  provision  should  be  made.  He  would  not  show  distrust 
in  the  Legislature  ;  but  it  was  proper  *that  fundamental  principles 
should  be  recognized  in  the  constitution.  In  this  favored  metropo- 
lis, everything  was  enjoyed  that  was  wanted  by  the  proposed 
amendment.  The  consequence  was,  that  no  people  contributed 
more  liberally,  because  they  contributed  voluntarily.  He  referred 
to  the  controversy  between  Mr.  Barnard  and  Mr.  Robinson.  The 
latter  said  to  the  former  that  he  wanted  nothing  but  voluntary  con- 
tributions. This  looked  like  liberty  of  conscience.  Such  liberty 
he  hoped  would  prevail  throughout  the  Commonwealth,  as  it  did  in 
this  metropolis.  Mr.  L.  said  the  state  of  religion  in  Rhode  Island 
had  been  unjustly  represented  the  other  day  by  the  gentleman  from 


MASSACHUSETTS    CONVENTION.  559 

Salem.  He  believed  no  part  of  the  country  was  more  blessed  by 
the  spirit  of  religion.  Last  year  two  thousand  persons  were  added 
to  the  churches,  and  he  believed  there  was  as  great  a  proportion 
of  real  Christians  there  as  in  any  other  part  of  the  country.  He 
believed  that  in  this  Commonwealth,  if  compulsion  was  not  used, 
men  would  give  twenty  dollars  where  they  now  give  five,  for  the 
support  of  religion.  He  hoped  therefore  the  amendment  would 
prevail. 

Mr.  Colby  of  Manchester  said  he  hoped  the  amendment  would 
not  prevail.  A  great  deal  of  speculation  would  be  the  consequence. 
The  town  in  which  he  lived  had  lost  $10,000  by  the  law  of  1811. 
Sectarians  came  there  with  their  certificates  of  membership,  selling 
them  for  a  quarter  of  a  dollar  apiece  ;  and  if  they  could  not  get  that 
they  would  let  them  go  for  ninepence. 

The  question  was  then  taken  by  yeas  and  nays  upon  the  amend- 
ment offered  by  Mr.  Childs,  and  decided  in  the  negative. 

Yeas — Messrs.  Aldrich,  E.  Allen,  Almy,  Anthony,  Arms,  Atherton,  Bachelder, 
J.  Baldwin,  T.  Baldwin,  E.  D.  Bangs,  Barker  of  Methuen,  Enoch  Bartlett,  Barrett, 
Bassett,  Beach,  S.  Boyden,  Brownell,  Sam'l  Bullock,  Bugbee,  Canedy,  Chamberlain, 
Childs,  J.  Y.  Clark,  Collamore,  L.  Cook,  Crandon,  C.  Cummings,  Daggett,  D.  Dana, 
P.  Dean,  Dearborn,  Dunbar,  Dunham,  B.  Ellis,  Evans,  Farnham,  Farwell,  Felt, 
S.  Field,  R.  Field,  Fish,  N.  Fisher,  Forward,  Fowle,  Frink,  Fuller,  Gale,  Z.  Gates,  D. 
Gray,  E.  Green,  Gregory,  D.  Hale,  S.  Hall,  B.  Hall,  H.Hamilton,  T.  Harris,  Haz- 
ard, Hearsey,  Hill,  J.  L.  Hodges,  A.  Holmes,  I.  Houghton,  Hull,  C.Hyde,  Kempton, 
Kent,  Kittredge,  B.  Knight,  Knowlton,  J.  Leonard,  Lester,  H.  Lincoln,  T.  Lincoln, 
L.  Lincoln,  Lovejoy,  Makepeace,  Martin,  Melville,  Miller,  D.  Mitchell,  Morse,  Enoch 
Mudge,  Ezra  Mudge,  Nelson,  Nickerson,  Nichols,  Nye,  Olney,  Page,  L.  M.  Parker, 
Parks,  Pickens,  Picket,  L.  Pierce,  Pierson,  M.  Phelps^  A.  Porter,  C.  Powers,  S.  Pratt, 
Reynolds,  Rider,  D.  Russell,  J.  Russell,  A.  Sampson,  Seaver,  Shepherd,  Sibley, 
S.sson,  H.  Slocum,  B.  Smith,  C.  Smith,  P.  Sprague,  J.  Spurr,  F.  Stebbins,  L.  Steb- 
b':ns,  Stone  of  Stow  and  Boxborough,  Storrs,  Talbot,  R.  B.  Thomas,  A.  Thompson, 
T.  Thompson,  jr.,  Thurber,  Tillinghast,  Tinkham,  Townsend,  Tufts,  Tyler,  J.  Wade, 
Waiter,  Waterman,  Wheeler,  W.  Whipple,  E.  Whipple,  N.  W.  Williams,  S.  Willard, 
Win.lsor,  Wm.  Wood  — 136. 

Najs — Messrs.  Abbott,  Josiah  Adams,  J.  Allen,  P.  Allen,  Allyne,  Alvord,  Apthorp, 
W.  Austin,  J.  Bacon,  Jos.  Bacon,  Bailey,  Banister,  R.  Bangs,  Z.  Barker  of  Andover, 
G.  Barstow,  G.  Barstow,  jr.,  G.  Bartlett,  A.  Bartlett,  B.  Bartlett,  W.  Bartlett,  J. 
Bartlett,  jr.,  Billings,  G.Blake,  J.  Blake,  jr.,  W.  Blanchard,  jr.,  J.  Bond,  G.  Bond, 
Bowdoin,  Bowman,  Boylston.  Boyse,  Bramhall,  P.  C.  Brooks,  S.  Brooks,  R.  Bullock, 
C.  Burts,  Cary,  Cheney,  J.  Clark  of  Ward,  J.  Clark  of  Waltham,  Cleaveland,  Colby, 
Coolidge,  Conkey,  Conant,  Cotton,  Crehore,  Crocker,  Cutler,  S.  Dana,  D.  Davis, 
N.  M.  Davis,  J.  Davis,  Dawes,  R.  Dean,  Derby,  Dewey,  E.  Dickenson,  E.  Doane, 
J.  Doane,  J.  C.  Doane,  Dodge,  S.  Draper,  jr.,  J.  Draper,  W.  Dutton,  D.  Dulton, 
Eames,  Edwards,  W.  Ellis,  R.  Eels,  Endicott,  Estabrook,  Fay,  J.  Fisher,  I.  Fisher, 
Flint,  Fobes,  Foote,  Foster,  Fox,  Frazer,  J.  Freeman,  R.  Freeman,  S.  Freeman, 
French,  H.  Gardner,  A.  Gates,  Gibbs,  Godfrey,  J.  Green.  Greenlcaf,  Gumev.  E. 
Hale,  N.  Hale,  N.  Hall,  A.  Hamilton,  W.  Harris,  Heard,  Hedge,  Hills,  Hinckley, 
S.  Hoar,  S.  Hoar,  jr.,  Holden,  Hopkins,  N.  Houghton,  Howes,  S.  S.  Howland,  Hoyt, 
S.  Hubbard,  E.  Hubbard,  Humphrey,  W.  Hunewell,  J.  Hunewcll.  W.  Hunt,  C. 
Jackson,  J.  Jackson,  A.  Jewett,  J.  Jewett,  Jones,  Judd,  Kasson,  Kellogg,  J.  G. 
Kendall,  James  Keyes,  John  Keyes,  E.  King,  J.  G.  King,  Knowles,  Lawson,  Lathrop, 
L.  Lawrence,  B.  Lawrence,  Leach,  Leland,  M.  Little,  J.  Little,  J.  Lock,  John  Locke, 
Longley,  Low,  J.  Lyman,  Marston,  T.  Mason,  Messinger,  Morton,  J.  Noyes,  N. 
Noyes,  Oakes,  Paige.  .1.  Parker,  Parris,  Pelham,  Pickman,  A.  Pierce,  V.  Pierce,  E. 
Phelps,  J.  Phillips,  W.  Phillips,  Phipps,  Pike,  Pomeroy,  Pope,  M.  Porter,  S.Porter, 
B.  Pratt,  N.  Pratt,  Prescott,  J.  Prince  of  Boston,  Quincy,  Rantoul,  J.  Reed,  S.  Reed, 
Reeves,   J.  Richards,    N.  Richards,  E.  Richardson,   J.  Richardson,  Joseph  Rich- 


560  MASSACHUSETTS     CONVENTION. 

ardson,  Robbing,  B.  Russell,  Saltonstall,  E.  Sampson,  Sanger,  Sargent,  Sanders, 
Saunderson,  Savage,  Sawyer,  Shaw,  Shepley,  Shillaber,  A.  Smith,  Starkweather, 
Stearns,  Stickney,  J.  Stone  of  Hardwick,  Joseph  Story,  J.  Story,  4th,  Stowell, 
Sturgis,  R.  Sullivan,  Wm.  Sullivan,  Taft,  Z.  Thompson,  Thomdike,  C.  Tilden,  J. 
Tilden,  Torrey,  Trowbridge,  Trull,  Tuckerman,  Turner,  Varnum,  N.  Wade,  Wake- 
field, L.  Walker,  Walton,  A.  Ward,  Ware,  R.  Webster,  D.  Webster,  Webber,  J. 
Welles  of  Boston,  J.  Wells  of  Williamsburg,  S.  A.  Wells,  A.  Whitney,  .T.  Whit- 
ney, W.  Whitney,  S.  White,  C  White,  A.  Whitman,  J.  Whitman,  D.  Whitman, 
Whiton,  Whitaker,  Wilde,  E.  Williams,  Willis,  Winship,  E.  Wood,  J.  Wyles,  Young. 
—246. 

The  question  recurring  upon  the  third  resolution,  Mr.  Flint  of 
Reading  moved  to  strike  out  the  words  "and  unincorporated." 

Mr.  Jackson  of  Boston  said  he  had  been  examining  the  resolution 
with  a  view  to  putting  it  into  form  for  submitting  it  to  the  people, 
and  he  found  that  it  contained  nothing  that  was  not-  in  substance 
already  in  the  constitution.  It  was  undoubtedly  the  intention  of 
the  committee  to  make  an  alteration  in  this  part  of  the  constitution, 
to  make  it  conform  to  the  alterations  proposed  in  another  resolu- 
tion ;  but  that  resolution  being  negatived,  the  present  became 
inoperative.  The  only  new  principle  which  would  seem  to  be  in- 
troduced was,  that  the  Legislature  should  have  the  same  power  to 
provide  for  the  duties  of  unincorporated  societies,  as  for  those  of 
incorporated  societies.  This  the  Legislature  had  already  ;  for  the 
constitution  says  religious  societies,  and  this  includes  all  religious 
societies,  whether  incorporated  or  unincorporated.  Before  the  law 
of  1811,  no  unincorporated  societies  were  acknowledged  by  the 
constitution  ;  but  that  law  having  recognized  them,  the  provision  of 
the  constitution  must  apply  to  them.  Some  gentlemen  might  think 
that  the  law  of  1811  should  be  incorporated  into  the  constitution  ; 
but  in  that  case  no  power  would  remain  to  future  Legislatures  to 
remedy  any  grievances,  evasions,  or  abuses,  that  may  grow  up 
under  it.  Some  had  praised  that  law  and  others  had  censured  it. 
He  had  had  fears  of  its  effect,  but  it  had  not  operated  as  he  had 
apprehended,  and  no  great  evil  had  flowed  from  it.  Ill  effects  may, 
however,  take  place  hereafter,  and  it  was  wiser  to  leave  the  power 
with  the  Legislature  to  provide  a  remedy  for  them.  He  did  not 
want  to  introduce  a  clause  to  restrain  the  Legislature  from  altering 
their  own  law  or  even  repealing  it,  if  circumstances  should  render 
it  expedient.  If  he  was  right,  however,  in  his  first  position,  that 
this  resolution  made  no  change,  he  hoped  the  gentleman  would 
withdraw  his  motion,  and  his  purpose  would  be  effected  by  the 
House  refusing  to  pass  the  resolution  to  a  second  reading. 

Mr.  Baldwin  of  Boston  moved  to  amend  by  inserting  the  follow- 
ing, viz  :  whenever  any  person  shall  become  a  member  of  any  reli- 
gious society,  corporate  or  unincorporate,  within  this  Commonwealth, 
such  membership  shall  be  certified  by  a  committee  of  such  society, 
chosen  for  this  purpose,  and  if  filed  with  the  clerk  of  the  town  where 
he  dwells,  such  person  shall  forever  after  be  exempted  from  taxation 
for  the  support  of  public  worship  and  public  teachers  of  religion  in 
every  other  religious  corporation  whatsoever,  so  long  as  he  shall  con- 
tinue such  membership.  Mr.  B.  observed  that  this  amendment  was 
contained  in  the  second  section  of  the  act  of  1811. 


MASSACHUSETTS     CONVENTION.  561 

The  motion  was  determined  by  the  president  to  be  out  of  order, 
not  having  passed  through  a  committee  of  the  whole. 

Mr.  Baldwin  said  he  would  be  governed  by  the  decision  of  the 
president.  The  question  on  this  amendment  would  try  the  sincerity 
of  the  gentlemen  who  say  the  law  of  1811  will  never  be  repealed. 
He  apprehended  the  gentleman  from  Boston  was  mistaken  in  saying 
the  constitution  never  acknowledged  unincorporated  societies  until 
this  act.  The  constitution  did  acknowledge  them  until  the  decision 
in  the  case  of  Falmouth.  He  would  move  to  go  into  committee  of 
the  whole  if  there  was  no  other  way  of  ascertaining  the  sense  of 
the  House  on  the  amendment. 

Mr.  Blake  of  Boston  said  the  gentleman  from  Boston  (Mr.  Jack- 
son) was  correct  in  saying  that  the  words  incorporated  or  unincor- 
porated were  adopted  by  the  select  committee,  in  connection  with 
the  other  amendments  proposed.  There  was  another  alteration  pro- 
posed in  this  resolution,  which  had  escaped  the  gentleman,  that  of 
substituting  the  word  Christian  for  protestant,  in  order  to  put  Cath- 
olics on  the  same  footing- with  other  Christians. 

Mr.  Jackson  said  he  intended  to  mention  that  the  motion  made 
by  the  gentleman  from  Concord  on  a  former  day,  might  be  renewed 
in  relation  to  the  change  of  protestant  to  Christian. 

Mr.  Story  of  Salem  said  he  should  oppose  striking  out  the  words 
■unincorporated.  For  thirty  years  there  had  been  a  construction 
that  "  religious  societies  "  in  the  constitution  included  unincorporated 
as  well  as  incorporated  societies.  There  had  been  a  case  in  which 
it  had  been  decided  upon  solemn  argument  and  upon  a  review,  that 
this  was  the  intention  of  the  constitution  ;  and  this  construction  con- 
tinued to  be  acted  upon  until  the  case  of  Barnes  vs.  the  first  parish  in 
Falmouth,  when  a  different  construction  was  adopted.  He  did  not 
hesitate  to  say  the  first  was  a  reasonable  and  fair,  if  not  a  legal  con- 
struction, and  he  chose  to  have  the  word  unincorporated  inserted 
into  the  constitution  to  bring  it  back  to  the  construction  originally 
given  to  it.  He  would  not  leave  the  subject  in  the  power  of  the 
Legislature.  As  long  as  the  law  of  1811  existed,  this  construction 
was  maintained  :  but  the  Legislature  might  repeal  the  act  to-morrow. 
Formerly  there  was  hardly  an  incorporated  society  along  the  whole 
seaboard.  Wherever  public  worship  was  maintained,  he  washed  the 
members  of  unincorporated  societies  to  have  the  same  rights  as  those 
of  incorporated  societies,  of  having  the  taxes  paid  to  the  persons  on 
whose  instruction  they  attended.  There  were  objections  to  the 
amendment  offered  by  the  gentleman  from  Boston,  (Mr.  Baldwin) 
— it  would  be  liable  to  abuse.  He  would  do  no  more  than  recog- 
nize the  principle  that  unincorporated  societies  may  exist,  leaving 
the  regulation  of  them  as  it  was  before  1810.  The  facts,  whether 
there  was  a  minister,  or  a  religious  society,  would  be  determined  by 
a  court  and  jury.  There  would  be  no  evil  in  putting  unincorporated 
societies  within  the  pale  of  the  constitution.  It  was  of  vast  conse- 
quence to  satisfy  a  large  portion  of  the  community,  that  their  relig- 
ious rights  stand  on  the  same  foundation  as  those  of  other  denom- 
71 


562  MASSACHUSETTS    CONVENTION. 

inations.  It  would  create  great  harmony.  He  was  in  the  speak- 
er's chair  when  the  law  of  1811  was  passed.  He  never  saw  greater 
excitement  than  existed  at  that  time  :  but  it  had  very  much  gone 
down.  The  first  section  of  the  act  of  1811  would  not  be  liable  to 
abuse,  but  the  one  proposed  as  an  amendment  was  objectionable  for 
that  reason.  It  would  not  be  sound  policy  for  those  who  think  relig- 
ious worship  ought  to  be  maintained,  to  remove  all  the  power  of 
regulation  from  the  Legislature.  There  was  a  jealousy  that  Congre- 
gationalists  have  views  of  aggrandizement  unfavorable  to  the  minor- 
ity. He  did  not  believe  such  views  were  entertained  by  the  Con- 
gregational denomination,  but  he  would  prevent  any  suspicion  of  the 
kind.  He  would  go  as  far  as  any  one  to  allay  the  excitement  which 
had  been  produced.  There  was  reasonable  ground  for  the  excite- 
ment when  the  construction  of  the  constitution  which  had  prevailed 
for  thirty  years  was  overturned  in  1810.  He  asked  if  gentlemen 
were  willing  to  have  this  excitement  go  on. 

Mr.  Nichols  of  South  Reading  moved  an  amendment  similar  to 
the  proposition  made  afterwards  by  Mr.  Fay  as  anew  resolution.  It 
was  decided  to  be  out  of  order,  not  having  been  in  committee  of  the 
whole  in  the  same  form  as  now  moved. 

Mr.  Hoar  moved  an  amendment,  proposing  to  substitute  Christian 
for  protestant.     Decided  to  be  out  of  order  for  the  same  reason. 

Mr.  Baldwin  moved  that  the  present  resolution  should  lie  on  the 
table,  in  order  that  he  might  move  to  have  his  proposition  committed 
to  a  committee  of  the  whole.     Negatived. 

Mr.  Varnum  said  if  he  had  not  been  assigned  to  a  duty  which  was 
incompatible  with  his  taking  any  part  in  the  debate,  he  should  not 
have  had  occasion  to  detain  the  Convention  at  this  late  period.  He 
would  make  no  professions  of  his  regard  for  religion,  he  was  willing 
that  his  conduct  should  speak  for  itself.  Nor  would  he  make  any 
invidious  distinctions  between  the  different  sects  or  denominations  of 
Christians  in  the  Commonwealth.  He  wished  to  live  in  fellowship 
with  them  all  as  far  as  their  principles  were  consistent  with  pure 
morality  and  the  good  of  society.  He  wished  that  gentlemen  would 
all  unite  and  adopt  something  that  would  give  satisfaction  to  all  de- 
nominations. For  this  purpose  he  hoped  they  would  do  away  all 
technical  difficulties,  and  give  a  fair  discussion  before  the  Conven- 
tion to  the  proposition  of  the  gentleman  from  Boston  (Mr.  Bald- 
win.) It  was  a  subject  dear  to  the  people  at  large,  and  they  had 
expected  that  it  would  be  fully  deliberated  on.  It  was  for  the  bene- 
fit of  all  parties  that  we  should  act  with  that  spirit  of  conciliation 
that  all  might  go  home  satisfied.  If  there  was  any  difficulty  in  the 
third  article,  now  was  the  time  to  correct  it.  As  to  the  first  part, 
all  agree  in  what  is  our  duty  in  relation  to  public  worship.  We  go 
along  together  until  we  come  to  the  difficulties  arising  from  the  dif- 
ference of  sects  and  denominations.  He  wished  that  everything 
like  distinction  might  be  done  away,  and  that  we  might  come  to- 
gether like  a  band  of  brothers.  If  there  is  a  difficulty  in  the  consti- 
tution, why  not  cure  it  ?     What  has  been  already  done,  only  places 


MASSACHUSETTS    CONVENTION.  563 

the  thing  where  it  now  stands.  It  has  been  decided  by  the  supreme 
court  that  before  the  law  of  1811,  no  society  was  within  the  meaning 
of  the  article,  unless  it  was  incorporated.  It  had  been  the  practice  to 
tax  every  person,  in  the  parish  where  he  lived,  however  much  he 
might  pay  for  the  support  of  his  own  teacher.  After  burdening  the 
parishes  with  collecting  from  persons  belonging  to  other  societies  the 
ministerial  taxes  assessed  on  them,  a  lawsuit  was  often  necessary  to 
restore  the  money  to  the  religious  teacher,  to  whom  it  was  appro- 
priated. He  alluded  to  a  case,  in  which  a  man  was  taxed  four  dol- 
lars, which  he  paid  to  the  parish  treasurer,  and  it  was  only  after  a 
series  of  lawsuits,  which  lasted  four  years,  at  an  expense  of  one  hun- 
dred dollars  to  him,  and  as  much  more  to  the  parish,  that  he  sue- 
ceeeed  in  having  it  appropriated  to  the  teacher  of  his  own  society. 
He  contended  that  every  person  should  be  taxed  only  by  their  own 
denomination,  and  that  the  parish  ought  not  to  be  put  to  the  trouble 
of  levying  and  collecting  a  tax,  nor  the  religious  teacher,  or  the  per- 
son paying  it,  to  the  trouble  of  getting  the  money  back.  He  thought, 
therefore,  that  the  proposition  of  the  gentleman  from  Boston  ought 
to  have  a  fair  hearing.  The  law  of  1811  had  given  relief,  but  it 
was  only  a  law,  and  if  he  could  judge  from  the  opinions  that  had 
been  expressed,  attempts  would  be  made  to  repeal  it,  and  to  place 
the  subject  on  its  former  footing.  He  asked  why  the  towns  of  Bos- 
ton, Salem,  and  Newburyport  should  have  an  exclusive  privilege. 
What  objection  was  there  to  making  that  law  a  part  of  the  third 
article  ?  It  had  been  contended  by  many  gentlemen  that  it  would 
never  be  repealed.  Make  it  a  part  of  the  constitution  so  that  it  can- 
not be  repealed — the  people  would  be  satisfied  and  it  would  do  no 
harm  to  anybody.  He  was  astonished  that  so  many  gentlemen  from 
the  town  of  Boston  were  opposed  to  everything  that  gives  full  relig- 
ious toleration.  He  did  not  know  why  any  gentleman  from  Bos- 
ton, Salem,  or  Newburyport  should  oppose  even  the  proposition  of 
the  gentleman  from  Pittsfield.  But  he  (Mr.  V.)  thought  that  was 
going  too  far.  He  was  surprised  to  hear  his  honorable  friend  from 
Boston  on  the  right  of  the  chair  (Mr.  Phillips)  the  other  day,  in- 
voke those  of  the  Congregational  order  tq  come  round  and  support 
the  standard  of  their  fathers.  He  did  not  believe  that  any  prayers 
of  that  kind  would  be  heard.  He  was  sorry  to  hear  the  able,  honest 
and  candid  gentleman  from  Concord  express  the  opinions  he  did  the 
other  day.  He  esteemed  him  for  his  abilities  and  his  candor.  He 
told  us  fairly  that  the  only  true  way  was  to  tax  every  person  within 
the  parish  lines  and  to  let  persons  of  the  different  denominations 
scramble  for  their  share  of  it.  He  admired  the  gentleman  but  ab- 
horred the  principle.  It  put  the  parish  to  the  expense  of  getting  the 
money,  and  persons  of  other  sects  to  the  difficulty  of  getting  it  back 
again.  It  was  the  same  principle  which  in  other  countries  had 
brought  the  guillotine,  rack,  and  faggot  into  operation.  The  gentle- 
man did  not  mean  it ;  he  knew,  and  was  willing  to  acknowledge  the 
fairness  of  his  motives,  but  it  was  his  duty  to  judge  of  the  principle. 
He  never  was  better  pleased  than  when  the  honorable   chief  justice 


564  MASSACHUSETTS    CONVENTION. 

and  his  honorable  associate  on  the  bench,  the  other  day  came  for- 
ward and  in  so  manly  a  manner  advocated  the  rights  of  conscience 
and  universal  toleration.  If  their  language  on  that  occasion  was 
recorded  in  letters  of  gold  and  written  up  on  every  man's  door,  it 
would  teach  a  most  useful  lesson  to  the  people  of  this  Common- 
wealth. He  was  happy  also  to  see  the  reverend  gentlemen  of  the 
Congregational  order,  from  Boston  and  Chelsea,  disposed  to  do  every- 
thing in  their  power  to  promote  the  desirable  object.  He  thought 
that  everything  like  an  intolerant  spirit  in  religion  was  fast  doing 
away,  and  he  trusted  that  before  long,  men  of  all  denominations 
would  be  willing  to  worship  together.  He  wished  to  do  everything 
to  promote  this  harmonious  spirit,  and  to  adopt  a  principle  which 
would  permit  men  of  all  parties  to  retire  from  this  Convention  satis- 
fied. 

Mr.  Walker  of  Templeton  said  the  subject  had  so  long  engaged 
the  attention  of  the  House,  that  he  thought  gentlemen  were  prepared 
to  come  to  a  decision.  He  hoped  the  resolution  would  pass.  To 
put  unincorporated  societies  on  the  footing  of  those  which  are  incor- 
porated would  have  a  conciliatory  tendency,  and  he  thought  it  would 
be  for  the  interest  of  the  community  at  large.  It  would  set  at  rest 
the  future  legislation,  on  what  should  be  considered  a  society  at  law. 
Engrafting  this  principle  into  the  constitution  would  induce  persons 
opposed  to  the  article  as  it  stands,  to  believe  that  some  attention  was 
paid  to  their  wishes. 

Mr.  Williams  of  Beverly  considered  it  his  duty  to  give  his  last 
testimony  on  this  subject.  This  resolution  met  his  approbation  as 
far  as  it  went.  But  he  did  not  believe  that  it  would  conciliate  the 
feelings  of  the  people  of  the  Commonwealth.  It  was  but  one  step, 
and  others  must  be  taken  before  the  people  would  be  satisfied.  In 
the  former  debate,  gentlemen  had  expressed  their  satisfaction  with 
the  law  of  1811.  He  thought  it  important  that  the  principle  of  that 
law  should  be  adopted  in  connection  with  this  resolution. 

The  question  was  taken  and  the  resolution  passed  to  a  second 
reading — 211  to  72. 

The  fourth  resolution,  disagreed  to  in  committee  of  the  whole, 
was  read  as  follows  : 

4th.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  con- 
stitution so  as  to  provide,  that  all  moneys  paid  by  the  citizen  to  the  support  of  public 
worship,  and  of  the  public  teachers  aforesaid,  shall,  if  he  require  it,  be  applied  to  the 
support  of  public  worship  where  he  shall  attend,  or  the  public  teacher  or  teachers  on 
whose  instiuction  he  attends,  whether  of  a  society  incorporated  or  unincorporated, 
provided  there  be  any  on  whose  instruction  he  attends ;  otherwise  it  shall  be  paid  to- 
wards the  support  of  public  worship  and  of  the  teacher  or  teachers  of  the  parish  or 
precinct  in  which  the  said  moneys  are  raised.  Provided,  however,  that  any  inhabitant 
of  any  parish,  or  member  of  any  religious  society,  whether  incorporated  or  not,  may  at 
all  times  unite  himself  to  any  society  within  this  Commonwealth,  incorporated  for 
the  support  of  public  worship,  having  first  obtained  the  consent  of  such  society  with 
which  he  shall  so  unite  himself;  and  having  procured  a  certificate,  signed  by  the 
clerk  of  such  society  to  which  he  hath  so  united  himself,  that  he  hath  become  a  mem- 
ber thereof,  and  filed  the  same  in  the  office  of  the  clerk  of  such  parish  or  society  to 
which  he  hath  belonged  and  in  which  such  moneys  are  raised,  he  shall  not,  while  he 
shall  remain  a  member  thereof,  be  liable  to  the  support  of  public  worship  or  of  any 


MASSACHUSETTS    CONVENTION.  565 

public  teacher,  except  in  the  society  of  which  he  hath  so  become  a  member,  but 
shall  be  holden  to  be  taxed  in  the  society  with  which  he  hath  so  united  himself,  until 
he  shall  cease  to  be  a  member  thereof. 

Provided,  also,  that  whenever  any  number  of  persons,  not  less  than  twenty,  shall 
have  associated  themselves  together  for  the  purpose  of  maintaining  public  worship 
and  public  religious  instruction  and  shall  have  made  and  signed  an  agreement  in 
writing  under  their  hands  declaring  such  purpose,  and  shall  have  caused  a  copy  of 
such  agreement  to  be  filed  in  the  office  of  the  clerk  of  the  town  or  towns  to  which 
they  shall  respectively  belong  ;  they  shall,  in  regard  to  the  support  of  public  worship 
and  the  maintenance  of  public  teachers,  have  all  the  powers  and  be  subject  to  all  the 
duties  of  parishes  within  this  Commonwealth ;  and  all  persons  so  associated,  while 
they  continue  members  of  such  society,  shall  not  be  liable  to  be  taxed  elsewhere  for 
the  support  of  public  worship  or  of  any  public  teacher  of  piety,  religion,  and  morality. 
And  any  person  may  become  a  member  of  such  society,  so  united  and  certified  as 
aforesaid,  if  such  society  shall  consent  thereto,  and  after  he  shall  have  procured  and 
filed  in  the  office  of  the  clerk  of  the  town  to  which  he  shall  have  belonged,  a  certifi- 
cate, signed  by  a  committee,  or  the  clerk  of  such  society  of  which  he  shall  have  so 
become  a  member,  that  he  has  become  a  member  of  such  society,  and  attends  public 
worship  with  them,  shall  not  be  liable  to  be  taxed  elsewhere  for  any  money  raised 
after  he  shall  have  filed  such  certificate,  so  long  as  he  continues  a  member  thereof 
and  shall  attend  public  worship  with  such  society ;  and  shall,  while  he  is  a  member 
thereof,  be  holden  to  contribute  to  the  support  of  public  worship  and  of  the  public 
teacher  or  teachers  in  said  society. 

Mr.  Sturgis  moved  an  indefinite  postponement  of  the  resolution. 

The  motion  was  carried,    167  to  144. 

The  fifth  resolution  was  then  read,  as  follows  : 

5th.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  con- 
stitution so  as  to  provide,  that  every  person  shall  have  a  right  in  criminal  prosecutions 
to  be  fully  heard  in  his  defence  by  himself  and  his  counsel. 

The  resolution  passed — 184  to  70. 

The  sixth,  seventh,  eighth  and  ninth  resolutions,  which  were 
disagreed  to  in  committee  of  the  whole,  were  successively  read  as 
follows : 

Gth.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  con- 
stitution so  as  to  provide,  that  armies  ought  not  to  be  maintained  except  in  conformity 
to  the  constitution  of  the  United  States. 

7th.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  con- 
stitution so  as  to  provide,  that  no  subsidy,  charge,  tax,  impost,  or  duties  ought  to  be 
established,  fixed,  laid,  or  levied,  under  any  pretext  whatsoever,  without  the  consent  of 
the  people  or  their  representatives. 

8th.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  con- 
stitution so  as  to  provide,  that  in  time  of  war  soldiers'  quarters  ought  not  to  be  made 
but  by  the  civil  magistrate  in  a  manner  ordained  by  law. 

9th.  Resolved,  That  it  is  proper  and  expedient  further  to  alter  and  amend  the  con- 
stitution so  as  to  provide,  that  no  person  can  in  any  case  be  subjected  to  law  martial 
or  to  any  penalties  or  pains  by  virtue  of  that  law,  except  those  employed  in  the  army 
or  navy  and  except  the  militia  in  actual  service,  but  by  legislative  authority. 

These  resolutions  were  severally  refused  a  second  reading  without 
a  division. 

On  motion  of  Mr.  Sturgis,  in  pursuance  of  notice  given  yester- 
day, the  fifth  rule  of  the  fourth  chapter,  which  required  that  reso- 
lutions proposing  any  alteration  in  the  constitution  should  be  read 
on  two  several  days,  was  rescinded. 

It  was  ordered  that  the  resolutions  relating  to  the  declaration  of 
rights,  be  now  read  a  second  time. 


566  MASSACHUSETTS    CONVENTION. 

The  second  resolution  was  then  read  the  second  time  and  passed. 

The  third  resolution  was  read. 

Mr.  Flint  moved  to  amend  by  striking  out  the  words  "  and  unin- 
corporated." He  made  some  remarks  in  support  of  the  motion,  and 
Mr.  Varnum  spoke  against  it. 

The  motion  was  lost. 

Mr.  Fay  moved  to  amend  the  resolution,  so  as  to  provide  that  all 
moneys  paid  by  the  subject,  for  the  support  of  public  worship  and  of 
the  public  teachers  of  piety,  religion  and  morality,  shall,  if  he  re- 
quest it,  be  applied  to  the  public  teacher  or  teachers,  if  any,  on 
whose  instruction  he  attends,  whether  of,  the  same,  or  of  a  different 
denomination  from  that  in  which  the  money  is  raised.  His  purpose 
in  moving  the  amendment  was  to  place  Congregationalists  on  the 
same  footing  with  persons  of  other  denominations,  and  to  make  the 
third  article  consistent  throughout.  The  article  as  it  now  stands 
compels  a  person  to  remain  united  with  a  society,  differing  from  him 
in  sentiment,  or  to  become  of  a  different  sect.  He  proceeded  to 
show  that  there  are  differences  of  opinion  between  persons  of  the 
same  denomination,  more  material  than  those  which  divide  most  of 
the  denominations. 

Mr.  Saltonstall  said  this  was  one  of  the  most  important  ques- 
tions which  had  been  proposed  in  relation  to  the  third  article.  If 
the  amendment  was  adopted,  it  would  reduce  to  a  nullity  all  that 
had  been  done — it  would  make  the  third  article  a  dead  letter.  It 
was  made  the  duty  of  the  Legislature  to  call  on  societies  in  their 
corporate  capacity  to  make  provision  for  the  support  of  public  wor- 
ship. But  this  proposition  would  put  it  out  of  the  power  of  such 
societies  to  make  any  contract  with  their  minister.  It  was  the  duty 
of  parishes  to  support  a  religious  teacher.  Suppose  they  make  a 
contract  for  this  purpose.  One  man  goes  away  to  one  parish — one 
to  another — the  increased  burden  induces  another  to  go  away,  until 
none  are  left,  and  what  becomes  of  the  contract  ?  He  asked  gentle- 
men to  reflect  on  the  situation  in  which  it  would  place  all  parishes. 
It  has  been  heretofore  necessary  for  a  person  who  wished  for  any 
reason  to  be  set  off  from  one  parish  to  another,  to  apply  for  leave  to 
the  Legislature.  But  this  amendment  would  make  this  application 
unnecessary,  and  would  destroy  all  permanent  distinction  of 
parishes. 

Mr.  Abbot  rose  to  a  question  of  order.  He  said  that  this  propo- 
sition had  not  been  discussed  in  this  form  in  committee  of  the 
whole. 

The  motion  was  decided  to  be  out  of  order. 

The  question  was  then  taken  on  the  third  resolution  and  it 
passed. 

The  fifth  resolution  was  read  a  second  time. 

Mr.  Shaw  said  that  when  this  resolution  passed  on  the  first  read- 
ing it  was  not  well  understood,  and  when  it  was  discussed  in  com- 
mittee of  the  whole,  it  was  in  a  thin  House.  He  proceeded  to 
recapitulate  the  arguments  against  the  resolution. 


MASSACHUSETTS     CONVENTION.  567 

The  question  was  taken  and  the  resolution  passed — 134  to    111. 

Mr.  Jackson,  from  the  committee  for  reducing  the  resolutions  to 
the  form  in  which  they  are  to  be  submitted  to  the  people,  made 
several  reports  which  were  laid  on  the  table.* 

Mr.  Fay  offered  the  proposition  he  had  made  as  an  amendment, 
in  the  form  of  an  independent  resolution,  and  moved  that  the  Con- 
vention go  into  committee  of  the  whole  for  the  purpose  of  consider- 
ing it. 

Messrs.  Sturgis,  Starkweather  and  Thorndike,  opposed  the 
motion,  and  Messrs.  Baldwin,  Lincoln,  Dana  and  Story,  spoke  in 
favor  of  it. 

The  motion  was  agreed  to. 

Mr.  Blake  moved  that  the  proposition  submitted  by  Mr.  Baldwin 
be  referred  to  the  same  committee  of  the  whole. 

Mr  Bond  supported  the  motion  and  it  was  agreed  to — 159  to 
129. 

It  was  ordered  that  the  two  propositions  be  made  the  order  of  the 
day  for  Monday  at  11  o'clock. 

It  was  ordered  that  when  the  House  adjourned  it  should  adjourn  to 
9  o'clock  on  Monday  morning. 

Mr.  Ellis,  from  the  committee  on  the  Pay  Roll,  reported  the  roll 
including  Monday  next,  for  travel  and  attendance,  amounting  to 
5124  dollars  travel,  and  50,800  dollars  attendance. 

It  was  ordered  that  the  roll  lie  on  the  table  till  Monday. 

Mr.  Walter  from  the  committee  on  Accounts,  reported  that  the 
volume  containing  a  report  of  the  debates  and  proceedings  of  the 
Convention  could  be  obtained  for  the  members  at  the  rate  of  $1.37f 
cents  each. 

Whereupon  it  was  ordered  that  a  sufficient  number  of  copies  be 
furnished. 

Leave  of  absence  was  granted  to  Mr.  Pope  of  Sandwich,  Mr. 
Houghton  of  Barre,  Mr.  Bullock  of  Royalston,  Mr.  Mattoon  and 
Mr.  Scott  of  Amherst. 

The  House  then  adjourned. 


Monday,  January  8. 

The  House  met  at  9  o'clock  and  the  journal  of  Saturday  was 
read. 

On  motion  of  Mr.  Varnum,  the  pay  roll  was  recommitted  with 
instructions  to  the  committee  to  make  an  alteration  so  as  to  include 
to-morrow. 

Mr.  Varnum  offered  the  following  resolution,  which  was  voted 
unanimously,  and  ordered  to  be  entered  on  the  journals,  viz.: 

Ordered,  That  the  thanks  of  this  Convention  be  presented  to  the  Ho*n.  Isaac  Par- 
ker, for  the  exertions,  attention,  ability,  and  impartiality  exhibited  by  him  whlist  he 
has  presided  over  their  deliberations. 


*  [The  resolves  and  amendments  reported  at  this  time,   are  primed  in   the  form  in  which  they 
passed,  at  the  end  of  the  proceedings  in  the  Convention.     See  page  612.] 


568  MASSACHUSETTS    CONVENTION. 

The  President  made  the  following  address  in  reply  to  the  vote 
of  thanks : 

"  Gentlemen  of  the  Convention  : 

"I  have  received,  with  great  sensibility,  the  testimony  of  your 
approbation  of  my  conduct  as  your  president,  on  the  motion  of  a 
gentleman  whose  long  public  services  in  high  stations,  and  whose 
able  exertions  in  this  Convention,  entitle  him  to  the  respect  of  his 
country. 

"  I  was  not  deceived  in  anticipating  that  faithful  endeavors  to 
discharge  the  duties  assigned  me  by  your  choice,  would  be  received 
with  candor,  although  my  inexperience  should  occasion  errors  and 
mistakes. 

"My  reliance  upon  the  advice  of  gentlemen,  whose  talents  have 
been  long  practised  in  the  forms  of  regulating  deliberative  assemblies, 
has  not  been  misplaced — from  them  I  have  received  powerful  aid 
and  support.  To  those  gentlemen  I  tender  my  thanks  for  sharing  so 
largely  in  the  labor  of  presiding  over  your  deliberations. 

"  To  all,  I  offer  my  respect  and  gratitude  for  that  order  and  deco- 
rum which,  in  so  numerous  an  assembly,  could  have  been  maintained 
only  by  individual  courtesy  and  respect  for  the  character  of  the 
people  whom  you  represent. 

"  Gentlemen — I  congratulate  you  upon  the  approach  of  the  happy 
termination  of  your  arduous  session.  The  importance  of  your  work, 
will  not,  by  an  intelligent  people,  be  estimated  by  its  visible  product 
in  actual  changes  of  the  constitution. 

"  We  were  sent  here  to  revise  a  constitution  dear  to  the  people, 
and  to  amend  it  only  where  amendments  should  be  found  necessary. 

"  The  reluctant  spirit  with  which  the  people  sent  us  here,  has 
been  duly  estimated.  You  have  given  the  constitution  a  faithful 
revision  in  all  its  parts  :  and  have  left  its  great  principles  and  its 
chief  organization  undisturbed.  The  work  of  preservation,  if  less 
difficult,  is  not  less  important,  than  the  work  of  creation. 

"  When  posterity  shall  see  that. the  frame  of  government,  which 
was  formed  by  the  great  men  who  composed  the  Convention  of 
1780,  was  carefully  and  critically  revised  by  those  who  constitute 
this  assembly  in  1820,  it  will  be  difficult  to  shake  their  confidence 
in  a  system  which  shall  come  to  them  so  recommended. 

"  Gentlemen — If  you  have  seen  disadvantages  in  so  numerous  a 
representation  of  the  people,  for  purposes  like  those  about  which  you 
have  been  engaged,  it  should  not  be  forgotten  that  they  will  be 
counterbalanced  by  the  general  confidence  which  the  opinions  of  so 
numerous  a  body  will  be  likely  to  inspire. 

"  Every  town  and  district,  with  one  or  two  exceptions,  within 
our  populous  and  flourishing  Commonwealth,  has  had  an  opportunity 
to  be  heard  by  its  delegates,  upon  the  interesting  questions  which 
have  been  discussed.  These  delegates  will  carry  home  to  their 
constituents  the  reasons  and  arguments  which  led  to  the  recommen- 
dation of  any  change  as  well  as  those  which  prevented  the  adoption 


MASSACHUSETTS    CONVENTION.  569 

of  such  as  may  have  been  desired  by  some.  The  people  will  thus 
be  able  to  judge,  upon  a  full  knowledge  of  all  the  motives  which 
have  had  their  influence  in  this  assembly — and  will  decide  with  an 
intelligence  worthy  of  their  character  and  their  advantages. 

"  That  the  harmony,  good  feelings  and  conciliatory  temper,  which 
have  prevailed  here,  may  extend  through  the  Commonwealth,  is  my 
ardent  desire  and  prayer.  That  party  spirit,  whose  crest  I  am  proud 
to  say  has  not  been,  on  this  occasion,  raised  within  these  walls,  may 
be  found  to  have  departed  from  our  Commonwealth,  and  to  have 
left  in  its  place  mutual  good  will  and  a  genuine  love  of  country,  is, 
I  have  no  doubt,  the  sincere  wish  of  us  all. 

"  I  pray  the  Almighty  Preserver  of  communities  and  men,  that 
you  may  all  return  in  safety  to  your  families  and  friends — carrying 
with  you,  and  finding  there,  health,  peace  and  happiness  ; — and  that 
your  children's  children  may  have  occasion  to  bless  your  memories, 
for  the  legacy  of  law,  liberty  and  prosperity,  which,  having  received 
from  your  fathers,  you  have  not  only  preserved  inviolate,  but  will 
have  transmitted,  secured,  and  improved,  to  the  generations  which 
succeed  you." 

On  motion  of  Mr.  Varnum,  ordered  that  the  President's  address 
be  entered  on  the  journals  of  the  Convention. 

The  resolutions  reported  by  the  committee  for  reducing  the  amend- 
ments into  form,  were  taken  up. 

The  first  resolution  was  read,  and  passed  over  for  the  present. 

The  second  resolution  was  read,  which  contains  a  provision  that 
the  votes  of  the  people  on  the  amendments  shall  be  given  on  the 
second  Monday  of  April. 

Mr.  Boylston  of  Princeton  moved  to  strike  out  the  second  Mon- 
day of  April,  and  insert  the  first  Wednesday  in  May,  because  of  the 
excitement  from  the  April  elections,  and  with  a  view  of  giving  the 
people  more  time. 

Mr.  Lincoln  of  Worcester  said  it  would  be  proper  to  have  the 
people  act  as  promptly  as  possible,  consistent  with  due  deliberation, 
upon  the  alterations  proposed  to  them.  The  time  recommended  by 
the  committee  would  not  interfere  with  the  business  of  the  people 
in  the  country ;  and  the  objection  made  by  the  gentleman  from 
Princeton,  respecting  the  excitement  of  the  people,  would  apply  Avith 
equal  force  to  the  day  proposed  by  him.  because  the  election  of  rep- 
resentatives takes  place  in  May. 

Mr.  Jackson,  chairman  of  the  committee,  observed  that  an  earlier 
day  than  the  one  proposed  by  the  gentleman  from  Princeton  was 
necessary,  in  order  to  give  time  for  making  the  returns.  It  was  also 
thought  by  a  gentleman  near  him  from  the  country,  that  the  first 
Wednesday  in  May  would  be  inconvenient  on  account  of  its  suc- 
ceeding immediately  after  the  general  muster  day. 

Mr.  Apthorp  of  Boston  remarked  that  the  second  Monday  in  April 
would  give  an  opportunity  of  voting  to  one  class  of  our  citizens,  who 
were  usually  absent  in  the  month  of  May. 
72 


570  MASSACHUSETTS    CONVENTION. 

On  a  division  of  the  motion  the  question  was  taken  for  striking 
out,  and  decided  in  the  negative. 

The  third  resolution  was  .read,  which  contains  a  provision  for  ap- 
pointing a  committee  of  the  Convention  to  meet  after  the  votes  shall 
have  been  given  in,  to  receive  and  examine  the  returns,  and  certify 
them  to  the  governor  aud  council,  and  also  to  the  General  Court. 

Mr.  Quincy  of  Boston  moved  to  strike  out  this  provision  and  in- 
sert instead,  that  it  shall  be  the  duty  of  the  Secretary  of  the  Com- 
monwealth to  lay  the  returns  before  the  Legislature  at  their  session 
next  after  the  votes  shall  be  returned.  Mr.  Q,.  offered  this  amend- 
ment, because  a  committee  of  the  Convention  would  be  an  irrespon- 
sible body. 

Mr.  Dana  of  Groton  wished  the  chairman  of  the  select  committee 
to  state  the  reasons  for  the  mode  proposed  in  the  resolution. 

Mr.  Jackson  said  the  committee  were  of  opinion  that  the  regular 
way  would  be  for  the  whole  Convention  to  come  together  again, 
and  receive  the  report  of  the  committee  proposed  to  be  appointed. 
But  this  would  occasion  great  expense  and  trouble  for  a  matter  of 
form,  as  the  Convention  could  do  nothing  but  count  the  votes. 
The  next  question  was,  who  should  attend  to  this  duty.  It  was 
thought  that  the  Convention  had  no  right  to  impose  the  burden  on 
the  governor  and  council.  The  General  Court  was  then  proposed  ; 
and  perhaps  no  great  inconvenience  might  arise  from  committing 
the  business  to  them  ;  but  it  was  thought  doubtful  whether  Ave  had 
a  right  to  impose  this  duty  on  them,  and  it  was  uncertain  in  what 
manner  they  might  treat  the  proposition.  It  seemed  necessary, 
however,  to  delegate  to  somebody ;  and  it  was  thought  that  we  had 
more  right,  if  we  had  any,  to  delegate  to  a  part  of  our  own  body. 
It  was  proposed  that  the  committee  should  be  a  large  one  ; — say 
two  from  each  senatorial  district.  The  select  committee  were 
aware  of  the  objection  made  by  the  gentleman  from  Boston,  (Mr. 
Qjjincy,  )  and  it  was  suggested  that  the  chairman  of  the  committee 
might  be  empowered  to  call  the  Convention  together,  in  case  any 
difficulty  should  occur.  It  was  considered  that  there  would  be  no 
great  risk  in  reposing  confidence  in  such  a  committee. 

Mr.  Dawes  of  Boston  said  if  this  objection  to  a  committee  of  its 
not  being  a  responsible  body,  had  not  come  from  a  gentleman  'for 
whom  he  had  a  high  respect,  he  should  have  called  it  a  fastidious 
objection. 

Mr;  Dana  argued  that  the  act  of  the  Legislature  having  given  the 
Convention  power  as  to  the  end,  the  same  was  to  be  implied  in  re- 
gard to  the  means,  and  he  thought  the  mode  pointed  out  in  the 
resolution  was  the  best.  He  remarked  that  they  were  sent  there  to 
revise  the  constitution.  It  had  undergone  a  grand  revision.  There 
had  been  a  grand  development  of  the  principles  on  which  it  was 
framed,  and  if  not  a  single  amendment  had  been  adopted  by  the 
Convention,  the  people  would  have  been  satisfied.  They  would  be 
glad  that  the  constitution  has  been  found  so  perfect.  He  thought 
it  would   be   more   satisfactory  to  the  people  to  have  a  part  of  the 


MASSACHUSETTS    CONVENTION.  571 

same  persons  receive  the  returns  who  were  appointed  to  make  the 
revision. 

Mr.  Dutton  of  Boston  said  he  apprehended  that  his  colleague 
(Mr.  Quincy)  was  mistaken  in  respect  to  responsibility.  If  they 
had  no  right  to  impose  on  the  Legislature  the  duty  of  receiving  the 
returns,  the  Legislature  would  be  under  no  obligation  to  perform  it. 
The  Legislature,  therefore,  would  be  an  irresponsible  body  in  rela- 
tion to  this  subject.  The  Convention  ought  not  to  meet  again,  and 
they  must  delegate  the  duty  to  somebody.  A  committee  of  the 
Convention  would  be  responsible  to  the  people,  in  the  same  manner 
that  the  Convention  itself  was. 

Mr.  Lincoln  of  Worcester  said  the  amendment  was  objectionable, 
because  it  proposed  to  commit  the  duty  to  an  extraneous  body. 
The  people  had  not  intrusted  the  Legislature  with  any  power  re- 
specting the  amendments  to  the  constitution,  and  the  whole  object 
of  the  Convention  might  be  defeated  by  adopting  the  present  prop- 
osition of  the  gentleman  from  Boston. 

Mr.  Quincy  said  the  only  question  was,  whether  this  committee 
to  be  appointed  was  a  responsible  or  irresponsible  body.  Giving 
that  committee  authority  to  call  the  Convention  together,  did  not 
cure  the  difficulty ;  they  might  or  might  not  do  it,  and  were  under 
no  responsibility  in  relation  to  it.  He  was  not  convinced  by  the 
arguments  in  support  of  the  resolution,  but  he  saw  the  general  im- 
pression was  in  its  favor,  and  he  should  not  urge  his  proposition  any 
further. 

The  question  was  taken  on  the  amendment,  and  decided  in  the 
negative. 

The  blank  for  the  time  of  the  meeting  of  the  committee  was  filled 
with  the  fourth  Wednesday  of  May  next. 

A  fourth  resolution,  respecting  the  mode  of  voting  upon  the  amend- 
ments, was  read. 

Mr.  D.  Davis  of  Boston  wished  that  some  mode  might  be  pointed 
out  for  making  known  to  the  people  the  amendments  which  should 
be  approved  by  a  majority  of  them. 

The  fourth  resolution  was  recommitted,  121  to  28 — with  in- 
structions to  report  on  the  mode  of  giving  official  notice  to  the  peo- 
ple of  the  amendments  which  may  be  ratified. 

The  other  resolutions  were  laid  on  the  table  in  the  mean  time. 

We  have  mentioned  such  parts  only  of  these  resolutions,  as  were 
the  subject  of  discussion  ;  as  we  intend  to  give  them  as  afterwards 
amended  and  adopted,  in  connection  with  the  amendments  reduced 
to  form.* 

The  resolution  to  take  away  the  power  of  proceeding  in  criminal 
cases  by  information,  was  taken  up. 

Mr.  Hinckley  said  that  the  select  committee  had  had  the  subject 
under  consideration,  and  had  come  to  the  result  presented  by  the 
resolve.     They  were  of  opinion  that  by  the  common  law  as  it  was 

'  [See  page  612.] 


572  MASSACHUSETTS    CONVENTION. 

established  in  the  Commonwealth,  the  attorney  or  solicitor  general 
may  file  an  information  at  pleasure  against  an  individual  for  any 
crime  by  which  he  may  be  put  at  hazard  of  losing  his  life,  liberty 
or  property,  and  that  this  was  a  dangerous  power,  and  one  which 
ought  to  be  guarded  against  in  the  constitution.  They  did  not  find 
that  there  had  been  any  abuse  of  the  power,  nor  did  they  apprehend 
any  danger  at  present,  but  it  was  an  arbitrary  power,  capable  of  be- 
ing abused,  and  which  ought  not  to  exist  in  a  free  government.  A 
citizen  of  the  fairest  reputation  may  be  brought  into  court  for  trial 
at  the  pleasure  of  the  prosecuting  officer,  when,  if  the  complaint 
were  brought  before  a  grand  jury,  it  would  be  suppressed,  and  the 
mortification  and  distress  of  a  public  trial  prevented.  It  is  pro- 
posed that  the  jurisdiction  of  justices  of  the  peace  and  the  law  mar- 
tial shall  remain  unaffected  by  the  alteration,  and  subject  to  the 
discretion  of  the  Legislature.  It  is  also  proposed  that  the  Legis- 
lature shall  have  authority  to  grant  the  power  to  the  prosecuting 
officers  of  the  Commonwealth,  of  proceeding  by  information  in 
specified  cases. 

Mr.  Webster  said  he  was  doubtful,  whether  the  resolution  would 
not  include  cases  of  quo  warranto,  and  some  other  cases,  where 
filing  an  information  was  a  proper  course  to  be  pursued.  He  there- 
fore moved  to  strike  out  the  words  "  loss  of  life,  liberty  or  property," 
and  to  insert  instead,  the  words  "  imprisonment  or  other  ignomin- 
ious punishment." 

The  amendment  was  adopted,  and  the  resolution,  thus  modified, 
was  as  follows,  viz.  : 

Resolved,  That  it  is  expedient  to  amend  the  constitution  in  the  declaration  of 
rights  so  as  to  provide  that  no  person  shall  be  subjected  to  trial  for  any  crime  or 
offence,  which,  on  conviction,  may  expose  him  or  her  to  imprisonment,  or  igno- 
minious punishment — but  by  presentment  or  indictment  of  a  grand  jury — except  in 
cases  which  are  or  may  be  otherwise  provided  for  by  the  statutes  of  this  Common- 
wealth. 

The  resolution  passed  as  amended. 

Mr.  Martin  of  Marblehead  offered  a  resolution  that  it  is  inexpe- 
dient to  make  any  other  alterations  in  the  constitution,  except  those 
which  have  been  adopted  respecting  oaths  and  subscriptions,  and 
respecting  the  mode  of  making  future  amendments. 

Decided  to  be  out  of  order,  being  repugnant  to  almost  everything 
that  has  been  before  determined. 

A  resolution  ottered  several  days  since  by  Mr.  Valentine  of  Hop- 
kinton,  proposing  to  alter  the  constitution  so  as  to  have  sheriffs 
elected  by  the  inhabitants  of  the  several  counties,  was  referred  to 
the  same  committee  of  the  whole  to  whom  was  referred  the  resolu- 
tion offered  by  Mr.  Fay  on  Saturday. 

A  resolution  providing  for  counsellors  being  qualified  in  the  re- 
cess of  the  Legislature,  by  the  governor,  alone,  or  lieutenant  gover- 
nor, and  any  one  of  the  counsellors,  previously  qualified,  was 
referred  to  the  same  committee  of  the  whole. 

This  resolution  had  been  agreed  to  in  the  committee  of  the  whole 


MASSACHUSETTS    CONVENTION.  573 

on  the  lieutenant  governor  and  council,  but  the  subjects  referred  to 
that  committee  having  been  recommitted  to  another  committee,  all 
its  proceedings  became  a  nullity. 

A  report  of  the  committee  for  reducing  amendments  to  form,  con- 
taining the  article  relating  to  the  political  year,  and  to  the  time  for 
holding  elections,  was  read. 

Mr.  Varnum  said  that  in  his  opinion  it  would  be  proper  to  have 
this  article  go  into  operation  in  one  year,  instead  of  two.  He 
thought  it  would  be  more  congenial  to  the  wishes  of  the  people. 
He  doubted  the  right  of  extending  the  term  of  office  of  persons 
chosen  for  one  year  only.  He  moved  to  amend  the  article,  so  that 
it  should  go  into  operation  upon  the  first  Wednesday  of  January, 
1822,  and  the  State  officers  chosen  next  spring  should  continue  in 
office  until  that  time. 

Mr.  Jackson  said  the  committee,  in  making  up  their  opinion, 
were  at  first  inclined  to  have  this  article  go  into  operation  immedi- 
ately ;  so  as  to  have  the  first  election  under  it  in  November  next. 
The  reason  for  changing  their  minds  was  because  this  year  the 
valuation  would  be  taken.  The  Legislature  in  May  would  appoint 
the  committee,  and  in  January  would  settle  the  valuation.  This 
would  be  the  course  whether  the  article  should  be  ratified  or  re- 
jected ;  if  it  should  provide  for  holding  the  first  election  in  Novem- 
ber, 1822.  It  was  thought  proper  that  the  same  General  Court 
which  began  to  make  the  valuation,  should  complete  it.  It  was 
considered  inexpedient  to  begin  the  new  organization  of  the  gov- 
ernment in  an  extraordinary  year  of  valuation.  It  was  suggested 
that  the  Legislature  might  have  an  extra  session  in  the  autumn,  to 
settle  the  valuation,  but  this  would  be  attended  with  great  expense, 
and  there  would  be  hardly  time  for  the  committee  to  make  up  their 
returns.  If  the  first  election  was  to  be  held  next  November,  the 
Legislature  would  have  a  great  deal  to  do  previously  in  classing  the 
towns,  and  it  was  possible  that  they  might  not  have  the  census, 
officially,  in  season  for  that  purpose.  It  was  necessary  to  do  one 
or  the  other ;  either  to  extend  to  eighteen  months  the  term  of  office 
of  the  persons  elected  next  spring,  or  to  abridge  it  to  six  months. 
There  seemed  to  be  no  objection  to  the  right  of  the  people  to  ex- 
tend the  term,  though  there  might  be  with  some  in  regard  to  the 
right  of  abridging  the  term.  The  General  Court  next  chosen,  would 
go  on  just  as  if  no  alteration  had  taken  place,  and  there  would  be 
no  need  of  a  May  session  in  1822. 

Mr.  Varnum  said  that  every  person  accepting  any  office  next 
spring,  would  know  that  it  might  expire  in  six  months.  If  the 
term  was  extended  to  eighteen  months,  many  people  would  con- 
sider it  a  dangerous  precedent,  and  we  should  hazard  the  rejection 
of  some  of  the  most  valuable  amendments.  With  respect  to  the 
valuation,  it  was  impracticable  for  the  same  General  Court  to  com- 
plete it.  If  no  alteration  should  be  made,  the  committee  appointed 
by  one  General  Court  would  make  their  returns  to  the  next  General 
Court.     No  difficulty  had  ever  been  experienced,  in  regard  to  want 


574  MASSACHUSETTS     CONVENTION. 

of  responsibility,  from  the  committee  making  their  returns  to  the 
next  General  Court,  instead  of  making  them  to  the  body  by  which 
they  were  appointed. 

Mr.  Lincoln  of  Worcester  said  he  differed  from  the  majority  of 
the  committee,  though  he  allowed  there  was  great  weight  in  the 
arguments  which  had  been  urged  by  the  chairman.     His  reasons, 
however,  were  not  the  same  as  those  advanced  by  the  gentleman 
from  Dracut.     It  was  admitted  that  we  have  a  defective  form  of 
government ;  we  should  therefore  give  the  people  an  opportunity  of 
having  a  good  one  as  soon  as  possible.     The  objections  were  all 
founded  on  matter  of  convenience.     In  respect  to  the  valuation,  the 
same  difficulty  would  always  exist,  unless  there  should  be  two  ses- 
sions.    He  did  not  think  it  would  be  necessary  to  have  two  sessions 
for  that   purpose,  or  he  would   have  opposed   the   proposition  for 
having  all  the  towns  represented  every  tenth  year,  on  account  of 
the  monstrous  expense  it  would  occasion  to  the  Commonwealth. 
There  would  be  no  difficulty  in  the  report  of  the  committee  on  val- 
uation being  made  to  a  new  Legislature,  without  having  the  com- 
mittee to  explain.     An  invoice  was  a  mere  matter  of  fact,  and  there 
were  always  gentlemen  in  the  Legislature   acquainted   with   this 
subject.     It  would  be  necessary  to  class  the  towns  before  a  Legis- 
lature could  be  chosen  under  the  amended  constitution,  but  this 
was  the  labor  of  a  day  and  could  be  done  at  the  next  May  session. 
Mr.  Prescott  hoped  the  amendment  would  not  prevail.     He  said 
a  valuation  committee  would  be  appointed  by  the  Legislature  next 
May.     The  house  of  representatives  would  probably  be  a  large  one. 
If  this  amendment  was  adopted,  the  committee  would  report  either 
to  the  same  General  Court  at  an  extra  session,  or  to  a  Legislature 
under  the  new  organization  of  the  government.     The  next  General 
Court  would  be  in  many  respects  differently  constituted  from  the 
one  to  be  chosen  under  the  amended  constitution.     They  would 
prefer  completing  the  valuation,  and  would  probably  have  an  extra 
session  in  October,  for  this  purpose  ;  and  then  a  new  Legislature 
would  be  chosen  in  November,  to  meet  in  January.     He  should  be 
willing  to  live  one  year  longer  under  this  defective  constitution, 
which  had  served  us  for  forty  years,  rather  than  have  the  expense 
of  an  extra  session  of  the  Legislature.    He  observed  in  addition,  that 
it  would  take  a  considerable  time  in  the  May  session  to  arrange  the 
classification  of  towns. 

Mr.  Sibley  of  Sutton  spoke  in  favor  of  the  amendment  as  being 
favorable  to  the  small  towns.  He  also  thought  it  was  important  to 
have  this  article  go  into  operation  as  soon  as  possible,  because  the 
defect  in  the  organization  of  the  senate  was  the  principal  reason  for 
calling  the  Convention. 

Mr.  Varnum's  amendment  was  adopted — 169  to  116. 
Mr.  Varnum  then  moved  to  fill  up  a  blank  for  the  day  of  the  first 
election,  with  the  second  Monday  of  November  next. 

Mr.  Jackson  pointed  out  an  inconsistency  in  saying  the  article 
should  not  go  into  operation  before  the  first  Wednesday  of  January. 


MASSACHUSETTS    CONVENTION.  575 

and  yet  requiring  by  it  that  the  first  election  should  be  on  the  pre- 
ceding November. 

On  motion  of  Mr.  Locke  of  Billcrica,  the  vote  adopting  the 
former  amendment  was  reconsidered ;  and  after  some  debate, 
on  motion  of  Mr.  Austin  of  Boston,  the  article  was  recommitted, 
in  order  that  the  committee  should  make  it  conform  to  the  sense  of 
the  House,  that  the  first  election  should  take  place  on  the  second 
Monday  of  November  next. 

On  motion  of  Mr.  Webster,  the  committee  had  leave  to  sit 
while  the  House  was  in  session,  if  it  should  be  necessary. 

Mr.  Stebbins  of  Granville  offered  a  resolution  so  to  amend  the 
constitution,  that  the  salaries  of  the  judges  of  the  supreme  judicial 
court,  after  the  present  judges  shall  have  vacated  their  offices,  shall 
be  so  fixed  that  the  salary  of  the  chief  justice  shall  never  be  more 
than  2500  dollars,  nor  less  than  2000,  and  that  of  the  justices,  not 
more  than  2000,  nor  less  than  1500. 

A  motion  to  commit  this  resolution  to  the  committee  of  the 
whole,  was  negatived. 

Mr.  Spurr  of  Charlton  offered  a  resolution  providing  that  the 
lands  belonging  to  the  Commonwealth,  situated  in  the  state  of 
Maine,  be  appropriated  to  the  establishment  of  a  fund,  the  interest 
of  which  shall  be  distributed  among  the  several  towns  and  districts, 
according  to  their  population,  for  the  support  of  the  common  schools. 
Also,  another  resolution  providing  that,  instead  of  a  registry  of 
deeds  for  each  county,  all  deeds  and  conveyances  of  real  estates 
shall  be  recorded  in  each  town  by  the  town  clerk,  who  shall  never 
be  allowed  more  than  25  cents  for  recording  each  deed. 

On  a  motion  to  commit  the  first  resplution  to  a  committee  of  the 
whole, 

Mr.  Boyeston  of  Princeton  stated  that  it  would  be  useless  to  take 
up  the  time  of  the  Convention  upon  this  subject,  as  the  lands  of  the 
Commonwealth  were  at  present  not  in  a  disposable  state — :being 
already  pledged  to  the  state  of  Maine  for  30,000  dollars,  in  consid- 
eration of  their  assuming  the  debts  and  claims  due  to  certain  Indian 
tribes  and  others,  on  the  separation  of  the  State.  They  were  to 
have  two  years  to  survey  and  locate  the  lands,  and  afterwards  the 
Legislature  of  Massachusetts  was  to  be  allowed  one  year  more  to 
make  their  election  whether  to  convey  the  lands  for  that  sum,  or  to 
pay  the  30,000  dollars  in  money.  But  another  very  important  consid- 
eration arises.  The  American  and  British  commissioners,  under  the 
treaty  of  Ghent,  were  running  the  line  on  that  quarter,  and  it  ap- 
peared by  reports,  that  the  American  commissioners  had  expressed 
some  degree  of  concession  to  the  British  commissioners,  whereby 
the  whole  might  fall  within  the  British  lines.  Whether  that  shall 
be  the  ultimate  decision,  or  not,  would  it  be  advisable  to  come  to 
any  vote  upon  property  in  a  state  of  so  much  uncertainty  ? 

A  motion  to  commit  these  resolutions  to  a  committee  of  the 
whole,  was  negatived  by  a  large  majority. 

It  was  moved  that  the  Convention  go  into  a  committee  of  the 


576  MASSACHUSETTS    CONVENTION. 

whole,  on  the  resolutions  which  were  committed  on  Saturday  and 
this  morning. 

Mr.  Abbot  of  Westford  opposed  the  motion.  He  said  it  would 
detain  the  Convention  a  long  time  to  discuss  the  subjects  referred 
to  the  committee,  and  he  thought  unprofitably.  One  of  the  prop- 
ositions relating  to  the  third  article,  had  been,  in  substance,  al- 
ready agitated,  and  the  object  of  the  other  was  already  attained  by 
the  law  of  1811.  What  was  now  proposed  was  not  necessary  for 
the  organization  of  the  government,  and  he  hoped  the  Convention 
would  refuse  to  go  into  committee  upon  it. 

The  motion  was  carried — 156  to  127 ;  and  Mr.  Webster  took 
the  chair. 

The  resolution  offered  by  Mr.  Fay,  for  the  further  amendment  of 
the  third  article  of  the  declaration  of  rights,  was  taken  up. 

Mr.  Hoar  was  sorry  that  any  gentleman  had  thought  it  necessary 
to  bring  this  proposition  before  the  Convention  at  this  late  period. 
It  had  been  twice  substantially  before  the  House,  and  had  been 
negatived  when  there  were  more  than  a  hundred  more  members 
present  than  were  now  here.  But  as  it  had  been  thought  fit  to 
bring  up  the  question,  it  was  necessary  to  consider  what  would  be 
its  operation.  It  was  a  short  and  plain  proposition,  and  at  first  view 
seemed  very  fair,  but  it  would  be  found  on  examination  that  its 
effect  would  be  to  annul  every  parish  in  the  Commonwealth.  It 
puts  an  end  to  all  acts  of  the  Legislature,  dividing  the  Common- 
wealth into  convenient  districts  for  the  support  of  public  worship. 
For  what  reason  was  this  to  be  done  ?  It  was  desirable  to  some 
persons  to  have  the  power  of  leaving  their  parish  minister  and  going 
to  another.  This,  no  doubt,  was  sometimes  a  very  convenient  and 
pleasant  thing,  but  there  were  two  sides  to  the  question.  A  parish 
forms  a  contract  with  a  minister — an  individual  votes  in  making  the 
contract,  but  the  next  year  changes  his  mind,  and  wishes  to  be  lib- 
erated. He  is  only  to  say  he  has  changed  his  mind  and  he  is  lib- 
erated. Would  this  be  borne  in  any  other  case  ?  Suppose  there 
was  a  banking  institution  in  which  the  individual  proprietors  were 
responsible  for  its  engagements,  and  an  individual  should  withdraw 
from  it  and  avoid  his  responsibility  ?  It  would  be  considered  a 
breach  of  good  faith.  This  provision  authorizes  every  member  of 
a  parish,  which  has  a  contract  with  a  minister,  to  go  where  he 
pleases,  and  no  tax  can  afterwards  be  assessed  upon  him  for  fulfill- 
ing the  contract — this  gives  a  new  inducement  to  another  to  go — 
and  the  corporation  may  be  left  without  corporators.  The  minister 
may  sue  and  get  execution  against  the  corporation,  but  he  can  get 
no  fruit  of  his  execution — and  there  is  no  way  in  which  his  con- 
tract can  be  enforced.  If  all  do  not  leave  the  parish — suppose  only 
one  half  leave,  those  who  remain  will  be  compelled  to  pay  a  double 
tax,  or  to  violate  their  contract.  It  "was  said  that  this  might  be  the 
effect  of  the  present  law.  This  did  not  diminish  the  force  of  the 
objection.  The  law  may  be  modified  so  as  to  prevent  these  conse- 
quences, but  if  the  principle  is  incorporated  into  the  constitution,  it 


MASSACHUSETTS    CONVENTION.  577 

cannot  be.  It  was  said  that  these  evil  consequences  had  not  re- 
sulted from  the  law.  One  reason  why  the  consequences  of  the  law 
had  not  been  felt  was,  that  it  was  not  generally  understood.  It  was 
generally  supposed  that  to  entitle  one  to  leave  a  parish  and  with- 
draw his  taxes,  he  must  become  a  member  of  a  society  of  a  differ- 
ent denomination.  J  Jut  the  law  had  recently  received  a  different 
construction,  which  was  no  doubt  correct.  It  was  true  that  under 
the  law  a  person  who  becomes  of  a  different  denomination,  has  a 
right  to  withdraw,  but  this  was  understood,  and  the  contracts  have 
been  made  subject  to  this  condition.  This  provision  might  be  lia- 
ble to  abuses  and  frauds,  but  it  did  not  follow  that  there  might  not 
be  benefit  in  the  restriction.  There  were  instances  in  which  pre- 
tended changes  of  opinion  to  avoid  taxation,  had  not  availed.  He 
stated  an  instance  of  a  man  who  left  a  Congregational  parish,  joined 
a  Baptist  society  and  was  immersed — and  who,  on  being  asked  if 
he  had  washed  away  his  sins,  replied  that  he  had  washed  away  his 
taxes,  which  was  his  principal  concern.  This  declaration  being 
proved,  he  was  still  holden  to  the  payment  of  his  taxes  in  the  Con- 
gregational parish  in  which  he  resided.  The  resolution,  if  adopted, 
would  change  the  condition  of  all  ministerial  contracts.  Whether 
it  would  annul  contracts  made  by  bond,  he  did  know,  but  there 
might  be  doubts.  It  disables  a  parish  from  forming  a  contract 
which  shall  be  binding  upon  both  parties.  Suppose  a  minister  is 
settled  in  the  usual  solemn  form  to-day,  this  amendment  points  out 
the  mode  in  which  any  member  of  the  parish  may  avoid  the  obli- 
gation entered  into.  It  may  be  all  fair  in  relation  to  future  con- 
tracts, but  it  is  not  in  relation  to  those  now  existing.  He  asked  if 
gentlemen  were  prepared  to  adopt  such  a  principle  in  the  constitu- 
tion. It  was  of  infinite  importance,  and  threatened  the  most  per- 
nicious consequences.  There  was  no  adequate  reason  for  the  chance 
in  the  trifling  inconvenience  that  had  been  felt.  He  hoped  that 
gentlemen  when  they  considered  the  thin  state  of  the  House,  com- 
pared with  what  it  was  when  <he  subject  was  before  under  dis- 
cussion, would  not  adopt  a  measure  which  must  put  an  end  to  the 
ancient  mode  of  supporting  ministers,  for  the  very  trifling  object 
that  is  proposed  to  be  gained  by  it. 

Mr.  Story  said  he  had  listened  with  great  care  and  attention  to 
the  gentleman  who  had  just  spoken,  and  whom  he  always  heard 
with  pleasure  and  instruction.  If  he  had  failed  to  convince  him 
by  his  ingenious  argument,  it  was  because  he  had  assumed  some 
things  which  he,  Mr.  S..  thought  were  not  to  be  admitted.  The 
assumption  is  too  broad  that  every  member  of  the  parish  is  bound 
to  contribute  to  the  support  of  the  minister,  and  that  whenever  you 
allow  an  exception,  it  impairs  the  obligation  of  the  contract  entered 
into,  and  you  lay  the  foundation  for  destroying  the  parish.  If  this 
was  true,  the  mischief  was  done  already;  the  constitution  now  has 
the  principle.  The  gentleman  thought  the  change  would  be  of 
pernicious  tendency; — if  he,  Mr.  S.,  thought  so,  he  would  be  opr 
posed  to  it.  but  he  thought  it  would  be  salutary.  This  was  only 
73 


578  MASSACHUSETTS    CONVENTION. 

opinion  against  opinion.  The  reason  why  this  alteration  ought  to 
be  made,  was  on  the  ground  of  the  indulgence  already  granted. 
Had  any  serious  evil  grown  out  of  the  present  indulgence  ?  If  there 
had  not,  would  the  evil  be  increased  by  giving  this  principle  an 
equal  operation  ?  No  gentleman  would  say  that  the  difference  of 
sentiment  was  not  as  great  between  an  Unitarian  and  a  Trinitarian, 
as  between  a  Trinitarian  Congregationalist  and  a  Baptist.  Why 
should  not  this  difference  be  entitled  to  the  same  indulgence  ?  The 
principle  of  the  constitution  is,  that  the  rights  of  conscience  shall  be 
indulged,  as  far  as  is  consistent  with  the  right  of  government  to  re- 
quire the  support  of  public  worship.  If  the  argument  that  the  right 
of  withdrawing  from  one  parish  to  another,  endangers  the  existence 
of  parishes,  is  well  founded,  it  prostrates  the  indulgence  already 
granted.  But  we  have  lived  under  the  constitution  forty  years  in 
which  the  provision  has  existed,  and  it  has  not  proved  injurious. 
The  gentleman  said  that  parishes  were  to  be  broken  up  by  this 
amendment.  He,  Mr.  S.,  held  that  they  were  to  be  preserved  by 
it.  By  the  present  constitution,  if  a  person  residing  in  a  parish  be- 
longs to  a  society  of  another  denomination,  and  worships  with 
them,  he  has  a  right  to  withdraw  his  taxes,  but  has  no  right  to 
withdraw  them  unless  he  belongs  to  a  society  of  another  denom- 
ination. The  consequence  is,  that  if  a  person  is  disaffected,  you 
drive  him  to  proselyting,  that  he  may  form  a  little  society  which 
shall  forever  protect  him  and  his  associates  from  being  taxed  in  the 
parish.  But  this  amendment  permits  him  to  go  to  another  society 
of  the  same  denomination — to  the  neighboring  parish — and  another 
man  perhaps  comes  back  from  the  other  society.  What  is  lost  by 
one  is  gained  by  another,  and  the  balance  is  nearly  equal.  It  will 
induce  the  minister  to  conciliate  the  feelings  of  his  parishioners,  and 
to  have  a  stricter  regard  to  the  feelings  of  the  minority  of  the 
parish,  where  there  is  a  division  of  opinion,  and  to  pay  an  equal  re- 
gard to  the  whole  of  his  flock.  It  will  prevent  persons  playing  the 
hypocrite,  by  going  over  for  a  short  time  to  a  sectarian  society,  to 
avoid  the  obligation  of  paying  taxes,  and  returning  to  another 
church  of  his  original  opinions.  He  put  it  on  the  ground  of  right. 
Why  should  persons  of  a  different  denomination  have  the  indul- 
gence, while  it  was  refused  to  persons  of  the  same  denomination, 
though  the  difference  of  opinion  may  be  greater,  and  the  reason  for 
the  indulgence  stronger  ?  He  granted  it  would  impair  the  security 
of  present  contracts,  but  it  would  not  prejudice  future  contracts.  It 
would  always  be  in  the  power  of  the  minister  to  require  the  guar- 
anty of  individuals,  and  if  he  is  a  good  man  there  will  be  no  diffi- 
culty. He  did  not  say  there  would  be  no  evils,  but  he  did  not 
believe  they  would  be  great.  When  he  recollected  that  for  two 
centuries,  piety  and  religion  had  distinguished  the  people  of  this 
State — that  the  ministers  of  the  gospel  had  generally  been  liberally 
and  cheerfully  supported — that  the  people  everywhere  felt  a  strong 
attachment  to  their  clergyman  and  an  interest  in  his  welfare,  he 
could  not  believe  that  any  parish  would  desert  their  minister  when 


MASSACHUSETTS     CONVENTION.  579 

old  and  grey-headed,  and  suffer  him  to  go  down  in  sorrow  to  the 
grave.  It  was  contrary  to  our  nature,  and  he  had  never  known  an 
instance  of  such  unnatural  treatment.  This  amendment  would 
have  a  tendency  to  strengthen  the  tie  between  minister  and  people, 
and  so  far  its  effect  would  be  salutary. 

Mr.  Foster  of  Littleton  said,  that  if  he  believed  the  public  good 
required  a  provision  of  this  kind,  he  should  cheerfully  give  his  assent 
to  its  adoption.  If  the  case  was  the  same  between  Christians  of  the 
same  denomination  as  between  different  sects,  he  .should  vote  in 
favor  of  the  resolution.  He  agreed  that  conscience  should  be  res- 
pected, but  he  thought  sufficient  provision  for  it  had  already  been 
made.  He  thought  that  when  we  said  a  man  might  do  as  he  had  a 
mind  to,  might  worship  when  and  where  and  in  what  manner  he 
pleased,  might  enjoy  his  opinions  freely,  might  embrace  the  system 
of  Swedenborg  and  all  his  nonsense,  if  he  chose,  or  run  after  any 
visionary  zealot,  no  person  had  a  right  to  complain  of  the  rights  of 
conscience  being  under  restraint.  The  gentleman  talks  about  the 
differences  between  Unitarians  and  Trinitarians — what  have  these 
speculative  disputes  of  ingenious  men  to  do  with  conscience  ?  He 
hoped  it  would  not  be  thought  indecorous  in  him,  on  account  of  his 
being  a  minister  of  a  Congregational  church,  to  oppose  this  resolu- 
tion. He  was  not  acting  as  a  clergyman.  He  stood  on  equal 
ground  with  other  gentlemen  and  wished  to  be  considered  only  as 
the  humble  delegate  of  the  town  he  represented.  If  this  provision 
was  to  be  prospective,  he  said  it  would  not  be  quite  so  objectionable. 
Future  contracts  between  a  minister  and  his  people  might  be  framed 
with  reference  to  it.  Ever  since  the  country  was  settled,  the  con- 
tract with  a  minister  had  been  for  life  ;  and  he  wished  gentlemen  to 
consider  that  it  was  not  a  trifling  thing  to  a  clergyman  to  be  turned 
out  of  his  living.  A  great  proportion  of  the  Congregational  clergy, 
instead  of  receiving  a  large  sum  when  they  were  settled,  have  made 
a  contract  to  have  a  small  sum  annually  during  their  life  ;  and  if 
this  is  taken  from  them,  they  will  be  left  without  any  resource. 
And  what  reason  is  to  be  assigned  by  a  parishioner  for  deserting  his 
clergyman  ?  No  reason.  The  constitution  is  my  reason.  I  am 
tired  of  hearing  this  old  worn-out  minister.  The  gentleman  from 
Salem  said  he  had  never  seen  a  clergyman  deserted  in  his  old  age — 
that  it  was  not  in  our  nature  to  act  with  such  inhumanity.  Unfor- 
tunately, the  gentleman's  experience  did  not  reach  to  every  case. 
He  (Mr.  F.)  had  seen  a  clergyman  deserted  in  his  old  age  and  seen 
his  grey  hairs  go  down  with  sorrow  to  the  grave.  When  a  proposition 
was  made  for  giving  the  Legislature  authority  to  reduce  the  salary 
of  a  judge,  the  gentleman's  sensibility  was  all  alive.  It  must  not  be. 
You  are  breaking  your  contract.  The  faith  of  the  community  is 
pledged,  so  long  as  he  behaves  himself  well.  He  agreed  with  the 
gentleman  perfectly,  only  he  did  not  go  far  enough.  Why  not  ex- 
tend his  protection  to  a  minister  of  the  Gospel  ?  No,  let  him  spend 
his  old  age  in  poverty  and  distress.  After  he  has  spent  his  best 
days  in  the  faithful  performance  of  his  duties,  let  his  society  turn 


580  MASSACHUSETTS    CONVENTION. 

him  off,  like  an  old  horse  worn  out  with  service.  By  this  resolu- 
tion, all  that  a  man  has  to  say  is,  that  he  has  a  preference  to  another 
minister.  All  our  parish  lines  are  blotted  out.  The  clergyman  may 
have  to  attend  his  parishioners  in  a  dozen  towns.  They  will  be  like 
the  cattle  on  a  thousand  hills.  Suppose  a  man  should  say  he  did 
not  like  the  governor,  or  the  judges,  and  it  was  against  his  con- 
science to  contribute  to  pay  their  salaries  ;  what  is  to  be  done  ?  A 
man's  conscience  is  quick  in  politics,  as  it  is  in  regard  to  paying  his 
minister.  In  either  case  it  is  a  mere  matter  of  money,  and  there  is 
no  conscience  about  it.  He  could  only  hope  the  resolution  would 
not  be  adopted. 

Mr.  Newhall  of  Lynnfield  hoped  the  resolution  would  be  adopted. 
He  thought  it  the  only  measure  that  could  preserve  the  Congrega- 
tional parishes  from  a  gradual  decrease — and  in  the  small  towns 
from  annihilation.  Besides  the  complaints  against  clergymen  arising 
from  fanaticism,  or  from  personal  prejudices  and  ill  will,  there  are 
in  almost  all  Congregational  societies  persons  of  respectable  char- 
acter whose  sentiments  on  the  great  and  leading  principles  of  Chris- 
tianity are  not  in  unison  with  those  of  the  settled  minister,  and  who 
for  that  reason  are  obliged  to  neglect  attending  on  his  ministrations, 
and  are  driven  to  societies  of  other  denominations.  It  is  well  known 
that  nearly  all  the  varieties  in  the  fundamental  doctrines  of  Chris- 
tianity, are  to  be  found  in  persons  of  the  Congregational  denomina- 
tion. There  are  therefore  all  the  reasons  for  dissenting  from  one 
Congregational  society  and  uniting  with  another,  that  there  can  be 
for  going  to  a  society  of  another  denomination.  As  therefore  he 
wished  to  see  all  religious  denominations  stand  upon  a  level  in  the 
enjoyment  of  religious  rights — as  he  was  desirous  that  there  should 
be  no  legal  hindrance  to  persons  removing  their  connections  from 
one  religious  society  to  another  of  the  same  order — and  as  he  be- 
lieved that  such  a  regulation  would  tend  to  promote  harmony  and 
friendship  among  Christians  of  various  sects,  he  hoped  the  proposed 
amendment  would  be  adopted. 

Mr.  Freeman  of  Sandwich  said  it  was  his  misfortune  to  differ 
from  the  learned  gentleman  from  Salem  in  relation  to  this  amend- 
ment. He  agreed  with  the  gentleman  from  Concord,  that  to  in- 
corporate it  into  the  constitution  would  be  about  equal  to  an  aboli- 
tion of  the  third  article.  He  would  not  go  into  argument  on  the 
question,  but  would  state  one  or  two  facts,  which  he  proceeded  to 
relate  by  way  of  showing  the  application  and  effect  of  the  proposed 
amendment  on  certain  parishes.  Unitarians  and  Calvinists  he  con- 
sidered different  sects.  He  had  no  interest  in  supporting  this  side 
of  the  question.  If  he  had  acted  from  a  regard  to  his  personal  in- 
terest he  should  have  spoken  on  the  other  side. 

Mr.  Low  of  Beverly  had  already  expressed  his  satisfaction  with 
the  law  of  1811  ;  but  that  might  be  repealed.  Before  that  law  there 
was  an  inequality  of  privileges.  In  Newburyport,  Dorchester,  and 
probably  twenty  other  towns,  all  persons  go  to  what  society  they 
please  and  pay  where  they  go.     He  would  not  say  how  much  law 


MASSACHUSETTS    CONVENTION.  581 

there  should  be  to  regulate  religion,  but  what  there  was  ought  to  be 
equal  in  its  operation. 

Mr.  Phelps  of  Belchertown  hoped  the  resolution  would  not  pass. 
It  was  brought  in  at  the  end  of  the  session,  after  many  of  the  mem- 
bers were  gone  home,  and  after  the  subject  had  been  fully  discussed 
in  a  full  house.  He  thought  it  ought  not  to  be  adopted  in  the  pres- 
ent state  of  the  house. 

Mr.  Lincoln  said  that  originally  every  parish  was  of  one  sect  and 
entertained  a  uniformity  of  sentiment,      lint  now  there  was  a  great 
difference  of  sentiment,  in  almost  every  town.     In  some  towns  there 
are  persons  who  are  obliged  to  play  the  hypocrite  and  associate  with 
a  society  they  do  not  agree   with,   or  contribute  to  the  support  of 
doctrines  they  do  not  believe.     What  was  the  condition  of  almost 
every  parish  in  the  western  part  of  the  Commonwealth?     Every 
person  was  born  with  the  obligation  of  supporting  religious  instruc- 
tion of  a  certain  kind,  for  the  dissemination  of   doctrines  which 
many  did  not  believe.     He  had  the  happiness  to  belong  to  an  Uni- 
tarian society,  where  he  could  worship  in  a  manner  consistent  with 
his  views  of  the  doctrines  of  Christianity.     But  what  would  be  the 
condition  of  a  man  belonging   to   such  a  society,  who,  by  what  he 
conceives  to  be  the  operation  of  irresistible  grace,  is  brought  to  be- 
lieve in  the  trinity,  and  all  the  doctrines  connected  with  it.  and  that 
his  former  opinions  were  erroneous  ?     Shall  he  be  bound  to  adhere 
to  his  society,  or  to  contribute  to  the  support  of  a  teacher  who  ac- 
cording to  his   new  views  preaches  what  is  without  a  particle  of 
religion  in  it,  and  inculcates  doctrines  abhorrent  to  his  conscience  ? 
It  is  only  an  act  of  justice  to  permit  him   to  Avithdraw.     As  to  its 
violating  the   obligation  of  contracts   between  the  parish  and  the 
minister,  it  is  done  by  the  provision  of  the  constitution  already,  and 
there  is  no  mode  of  preventing  it.     If  all  are  required  to  pay  for  the 
support  of  public  worship  in  some  society,  it  is  all  that  can  be  done 
towards  gaining  the  purposes  of  government.     The  differences  be- 
tween persons  of  the  same  denomination  are  many  of  them  more 
essential  than  those  which  distinguish  the  different  denominations. 
The  latter  are   principally  matter  of  form — the  other  may  be  a  dif- 
ference  in   fundamental   doctrines.      The   learned   gentleman  pro- 
ceeded to  state  the  practice  that  was  begun  as  early  as  1807  by  the 
Legislature,   of  incorporating  poll  parishes,  and  the  operation  and 
effect  of  the   practice  which   he  contended  had  been  favorable  in 
promoting  attendance  on  public  worship  and  the  growth  of  piety 
and  religion. 

Mr.  Fay  of  Cambridge  said,  if  the  proposition  had  been  substan- 
tially discussed  and  acted  on.  he  should  not  have  brought  it  forward 
at  this  time.  But  it  was  brought  forward  in  connection  with  other 
principles,  and  had  not  been  fairly  tried.  He  did  not  believe  it 
would  be  productive  of  the  evils  which  the  gentlemen  from  Concord 
and  Littleton,  who  had  spoken  on  the  subject,  apprehended.  The 
evils  which  they  had  described  were  the  evils  of  the  constitution, 
and  some  of  them  would  be  done  away  by  this  measure.     The  gen- 


582  MASSACHUSETTS    CONVENTION. 

tleman  from  Littleton  surrendered  the  argument  when  he  contend- 
ed that  all  which  was  provided  by  this  amendment  was  attained  by 
the  law  of  1811,  which  law  he  admitted  to  be  right.  He  believed 
that  the  injurious  effects  of  the  alteration  would  be  confined  to  a 
few  cases,  and  that  in  general  the  only  effect  would  be  to  introduce 
a  little  interchange  between  parishes,  which  would  be  of  favorable 
tendency. 

Mr.  Foster  did  not  believe  that  gentlemen  who  differ  in  specu- 
lative opinions  often  differ  so  much  that  they  cannot  worship  to- 
gether profitably.  But  this  amendment  permits  persons  without 
cause — without  pleasing  to  offer  any  reason,  to  go  to  another  society, 
and  to  desert  that  in  which  they  are  bound  to  perform  certain  en- 
gagements. He  did  not  object  to  persons  separating,  who  could  not 
profitably  worship  together.  This  amendment  would  virtually  dis- 
solve every  contract  existing  between  a  parish  and  its  minister.  He 
knew  there  was  a  remedy  in  the  courts  of  the  United  States,  but  no 
one  would  wish  to  resort  to  it. 

Mr.  Abbot  of  Westford  moved  to  amend  the  resolution,  by  an- 
nexing a  proviso  that  the  real  estate  of  non-residents  shall  be  liable 
to  be  taxed  for  the  support  of  public  worship  in  the  town  or  parish 
in  Avhich  it  is  situated. 

Mr.  Hoar  supported  the  amendment.  He  explained  the  opera- 
tion of  the  resolution  if  adopted  in  releasing  from  taxation,  for  this 
object,  all  the  lands  of  non-resident  proprietors. 

Mr.  Story  asked  the  gentleman  if  he  should  vote  for  the  resolu- 
tion if  the  amendment  were  adopted. 

Mr.  Hoar  said  he  certainly  should  not  vote  for  the  resolution  if 
amended,  but  he  thought  it  his  duty  to  endeavor  to  make  it  as  little 
injurious  as  possible. 

The  amendment  was  negatived — 127  to  173. 

Mr.  Baldwin  expressed  his  entire  concurrence  in  the  resolution. 
He  said  there  were  differences  of  opinion  as  great  between  persons 
of  the  Congregational  denomination,  as  between  Congregationalists 
and  Baptists.  It  was  said  that  a  minister  might  be  left  by  his  people. 
This  was  true — but  there  ought  to  be  no  obligation  that  was  not 
mutual.  The  minister  might  change  his  opinion,  and  the  people 
would  be  deprived  of  the  benefit  of  their  contract.  Were  the  people 
in  such  case  bound  to  support  him  ?  A  person  cannot  worship  with 
any  profit  with  a  teacher  from  whom  he  differs  in  the  essential 
points  of  faith. 

The  question  on  the  resolution  was  then  taken,  and  it  was  agreed 
to— 214  to  116. 

The  committee  then  rose  and  reported  its  agreement  (to  the 
resolution. 

It  was  ordered  that  when  the  House  adjourn,  it  be  to  half  past  3 
o'clock  this  afternoon. 

Leave  of  absence  was  granted  to  Messrs.  Dewey  and  Kellogg 
of  Sheffield,  Gates  of  Rutland,  and  Whitaker  of  Monson. 

Adjourned. 


MASSACHUSETTS    CONVENTION.  583 

Afternoon  Session. 

The  House  met  at  half  past  3  o'clock. 

Leave  of  absence  was  given  to  Messrs.  Eames  of  Washington  ; 
Knight  of  Norwich,  and  Uoane  of  Phillipston  ;  also,  to  Mr.  Jones  of 
Barre,  after  to-morrow. 

On  motion  of  Mr.  Walter  of  Boston  the  House  went  into  com- 
mittee of  the  whole  on  the  unfinished  business  of  the  forenoon — 119 
to  94 — Mr.  Webster  in  the  chair. 

The  committee  proceeded  to  the  consideration  of  the  resolution 
offered  by  Mr.  Baldwin  of  Boston  for  providing  that  any  person  be- 
coming a  member  of  any  religious  society,  and  filing  with  the  clerk 
of  the  town  where  he  dwells,  a  certificate  of  a  committee  of  such 
society,  of  his  membership,  shall  be  exempted  from  taxation  to  any 
other  society,  while  such  membership  continues. 

Mr.  Baldwin  said  that  some  amendments  to  the  third  article  of 
the  declaration  of  rights,  had  been  agreed  upon  by  the  Convention, 
but  the  most  obnoxious  part,  perhaps,  remained  unrepealed.  The 
most  potent  objection  which  had  been  urged  against  incorporating 
this  resolution  into  the  constitution,  was,  that  the  provision  was 
liable  to  abuses.  Particular  instances  had  been  mentioned,  which, 
upon  examination  of  the  facts,  would  be  found  to  have  been  mis- 
represented. He  was  sorry  that  such  representations  should  be 
given,  because  they  prejudice  the  minds  of  gentlemen,  unjustly, 
against  the  merits  of  the  resolution.  The  principle  of  the  resolution 
was  contained  in  the  fourth  resolution  of  the  select  committee  on  the 
declaration  of  rights.  The  whole  thing  claimed  was,  that  the 
money  of  the  members  of  a  society  of  any  denomination,  should  not 
be  paid,  so  as  to  oblige  them  to  draw  it  out  of  other  hands.  It  was 
as  contrary  to  the  tenets  of  the  Baptists,  to  levy  compulsory  taxes, 
as  it  was  to  those  of  the  Friends  to  do  military  duty.  The  gentle- 
man from  Littleton  had  said,  that  seventy  societies  applied  to  the 
Legislature  some  years  since,  to  be  incorporated,  only  one  of  which 
was  a  Congregational  society.  The  gentleman  mistook  the  object 
of  these  applications.  It  was  to  get  rid  of  paying  taxes  to  other 
societies  ;  not  to  obtain  authority  to  tax  their  own  members.  He 
pitied  that  clergyman  who  depended  on  the  compulsory  taxation  of 
his  society  to  ensure  him  a  subsistence.  The  exemption  in  this 
resolution  lasted  only  so  long  as  the  person  continued  a  member  of 
the  religious  society  to  which  he  united  himself. 

Mr.  Wilde  of  Newburyport  said  that  although  the  time  of  the 
Convention  was  short,  he  could  not  reconcile  it  to  his  conscience 
not  to  resist  a  proposition  so  totally  opposed  to  his  feelings  and  prin- 
ciples, as  well  as  repugnant  to  what  had  already  been  adopted  by 
the  House.  If  the  alternative  were  put  to  him  to  adopt  this  reso- 
lution or  expunge  the  third  article,  he  should  prefer  expunging  the 
third  article  ;  and  for  this  reason,  that  the  whole  subject  would  then 
be  in  the  power  of  the  Legislature.  Although  this  would  be  a  dan- 
gerous power  to  be  left  to  the  Legislature,  yet  he  should  trust  to  the 
feelings  and  dispositions  of  the  people  of  this  Commonwealth  to  rec- 


584  MASSACHUSETTS    CONVENTION. 

tify  any  mistakes  or  abuses.  Though  many  evils  might  arise,  though 
the  rights  of  conscience  might  be  invaded  by  the  Legislature,  he 
would  run  the  risk  rather  than  accept  this  proposition.  What  was 
the  amount  of  this  resolution  ?  that  any  man  may  join  any  society, 
and  on  producing  his  certificate  of  having  joined  it,  may  be  exempt- 
ed from  taxation  for  the  support  of  public  worship  in  every  other 
society.  Any  man  may  join  any  society,  or  any  number  of  men 
may  form  a  society,  by  which  any  man  may  be  exempted  from  all 
taxation  for  the  support  of  public  worship  in  the  town  where  he 
resides.  The  consequence  will  be  that  all  who  want  to  get  rid  of 
paying  taxes  will  join  a  society.  It  is  not  necessary  to  support 
public  worship — there  is  no  need  of  a  public  teacher — the  society 
may  be  in  this  town  or  in  any  other.  A  religious  exemption  society 
will  be  formed — exempt  not  only  from  taxation,  but  from  all  relig- 
ious duties.  A  society  may  consist  of  one  hundred  thousand  per- 
sons from  all  parts  of  the  Commonwealth,  and  all  the  members 
residing  in  their  respective  towns.  If  this  was  not  totally  expunging 
the  third  article,  it  was  worse  ;  because  by  putting  this  resolution 
into  the  constitution,  the  Legislature  would  be  deprived  of  the 
power  to  correct  such  abuses.  He  would  make  a  single  remark 
upon  the  manner  in  which  this  resolution  was  introduced.  The 
substance  of  it  was  contained  in  the  proposition  introduced  by  the 
gentleman  from  Beverly,  (Mr.  Williams.)  The  gentleman  from 
Boston,  (Mr.  Parker,)  to  correct  the  evils  which  that  proposition 
might  occasion,  moved  an  amendment  by  which  all  persons  should 
be  called  upon  to  contribute  to  the  support  of  public  worship.  The 
gentleman  from  Beverly  acceded  to  this.  He  said  he  had  no  design 
to  break  up  parishes,  but  wished  that  every  society  might  be  at  lib- 
erty to  raise  moneys  in  their  own  way,  without  being  subjected  to 
the  inconvenient  mode  of  withdrawing  from  other  hands  the  taxes 
paid  by  its  own  members.  The  proposition  of  that  gentleman  thus 
modified,  Mr.  W.  conceived  at  the  time,  would  be  a  valuable 
amendment  to  the  third  article,  and  he  still  thought  so.  It  would 
have  remedied  a  defect  in  that  article.  It  would  have  put  a  re- 
straining clause  upon  the  Legislature  in  regard  to  exempting  from 
contribution  to  the  support  of  public  worship.  The  court  were 
constrained  to  say,  as  there  was  no  clause  for  restricting  the  Legis- 
lature, that  the  law  of  1811  was  constitutional.  He  believed  that 
proposition  as  amended  would  have  been  a  salutary  check  upon  the 
Legislature.  That  it  would  have  produced  harmony  ;  and  that  time 
and  experience  would  have  removed  all  our  fears  and  apprehensions 
of  its  operation.  But  it  was  in  vain  to  speak  of  that  now,  or  to 
attempt  to  restore  it.  He  knew  it  was  opposed  by  gentlemen  who 
had  nothing  in  view  but  the  support  of  the  institution  of  public 
worship  and  religious  instruction,  but  he  thought  if  they  wpuld 
review  the  subject  fairly,  that  instead  of  a  majority  of  six  or  seven 
against  the  proposition,  two  thirds  of  the  House  would  be  in  favor 
of  it.  The  gentleman  from  Boston,  (Mr.  Baldwin)  however,  has 
not  thought  proper  to  move  that  proposition,  but  prefers  moving  the 


MASSACHUSETTS    CONVENTION.  585 

present  resolution  with  all  its  defects.  After  a  majority  of  110  have 
determined  to  retain  the  third  article,  they  are  called  upon  by  the 
minority  to  yield  the  principles  of  it  for  the  sake  of  conciliation. 
He  did  not  know  how  the  minority  could  call  on  them  to  yield 
these  principles  any  more  than  they  could  call  on  them  to  abjure 
their  religion.  He  had  not  praised  the  law  of  1811 ;  he  only  said  it 
was  made  with  a  good  intent.  It  was  made  prospectively.  The 
abuses  were  not  foreseen.  If  the  abuses  of  which  it  is  susceptible 
should  take  place,  the  Legislature  would  correct  them  ;  but  if  this 
law  is  inserted  in  the  constitution,  it  will  be  out  of  their  power. 
They  would  have  to  sit  under  a  church  founded  for  the  purpose  of 
exempting  from  taxation.  It  was  not  the  intention  of  the  gentle- 
men who  have  brought  forward  any  of  these  propositions,  to  exempt 
profligates  from  contributing  to  the  support  of  religion  and  morality  ; 
they  had  disclaimed  it  ;  but  such  would  be  the  effect  of  the  present 
resolution.  This  proposition  did  not  show  conciliation;  brought 
forward  too  at  this  late  period  of  the  session.  In  every  instance, 
those  in  favor  of  the  third  article  had  made  concession.  He  had 
yielded  in  every  vote.  He  wished  every  religious  person  to  enjoy 
freedom  in  religious  worship,  and  they  had  as  much  without  this 
amendment  to  the  constitution  as  they  would  have  with  it ;  but  he 
did  not  want  to  help  those  who  wished  not  to  contribute  at  all  to 
the  support  of  religion.  He  had  already  shown  that  he  was  not 
bigoted;  he  had  no  disposition  to  crowd  any  gentleman,  but  would 
yield  as  far  as  any  man  on  a  question  of  expediency  ;  but  on  a  ques- 
tion  of  principle,  he  would  not  yield,  whatever  might  be  the  conse- 
quences. He  hoped  the  resolution  would  be  negatived  without 
much  consideration. 

Mr.  Varnum  said  the  gentleman  from  Newburyport  had  expatiated 
largely  on  the  impropriety  and,  he  might  say,  wickedness  of  intro- 
ducing such  a  proposition  at  this  time.  He  asked,  was  this  correct  ? 
Does  any  body  figure  to  himself  that  any  society  of  100,000  persons, 
such  as  the  gentleman  has  imagined,  will  ever  be  realized  ?  Mr. 
V.  read  the  third  resolution  of  the  committee  on  the  declaration  of 
rights,  which  had  been  adopted.  In  this  third  resolution  the  socie- 
ties incorporated  and  unincorporated,  are  required  to  do  what  ?  to 
make  suitable  provision  for  the  institution  of  public  worship  of  God, 
&c.  Here  they  had  not  only  bound  these  societies  to  make  suita- 
ble provision  for  the  support  of  public  worship  but  had  also  bound 
the  Legislature  to  see  that  such  a  provision  is  made.  How  then 
could  such  a  society  as  the  gentleman  has  imagined,  exist  ? 

Mr.  Wilde  expiained.  His  argument  was  that  100,000  or  any 
number  might  join  one  society  and  have  public  worship  kept  up  in 
any  one  place  in  the  State,  and  the  members  not  attend  it. 

Mr.  Varnum  said  it  was  not  wonderful  that  he  should  not  under- 
stand, he  was  so  far  behind  the  gentleman  in  learning.  He  said 
there  would  be  no  society  that  would  not  be  fully  under  the  opera- 
tion of  law  and  bound  to  support  public  worship.  So  ought  every 
one  to  be.  If  we  looked  a  little  further,  we  should  find  that  the 
74 


586  MASSACHUSETTS     CONVENTION. 

difficulty  was  not  in  the  country  towns  but  in  the  large  seaports, 
where  there  are  many  persons  who  are  never  called  on  to  contribute 
to  the  support  of  public  worship  ;  men  of  large  property  who  do  not 
pay  a  cent.  Gentlemen  had  told  them,  and  gentlemen  in  high  sta- 
tions, who,  from  the  nature  of  their  offices,  were  capable  of  judging 
from  the  experience  of  its  results,  that  the  law  of  1811  had  not 
operated  in  the  manner  they  had  anticipated.  It  was  well  known 
that  it  had  produced  harmony  and  allayed  the  great  public  excite- 
ment which  prevailed  at  the  time  when  it  was  passed.  He  thought 
that  could  not  be  stigmatized  as  a  bad  proposition,  the  intention  of 
which  was  to  introduce  into  the  constitution  a  law  which  has  ope- 
rated so  favorably.  One  denomination  had  been  provided  for  this 
morning  by  the  adoption  of  the  resolution  introduced  by  the  gentle- 
man from  Cambridge,  (Mr.  Fay.)  The  dissenters  only  contended 
to  be  put  on  the  same  footing.  Why  should  one  denomination  be 
obliged  to  let  the  moneys  intended  for  the  support  of  their  own 
mode  of  worship,  pass  through  the  hands  of  another  denomination  ? 
He  hoped  the  resolution  would  be  adopted. 

Mr.  Sibley  of  Sutton  hoped  the  resolution  would  prevail.  As 
experience  was  the  best  master,  he  would  mention  that  it  was  twenty- 
five  years  since  they  had  had  any  parish  tax  for  the  support  of  pub- 
lic worship.  While  taxes  were  assessed,  the  society  continually 
diminished  till  it  had  almost  come  to  nothing  ;  but  they  adopted  the 
method  of  taxing  pews,  and  now  the  society  flourished.  No  person 
was  compelled  to  attend  public  worship  or  contribute  to  its  support, 
but  every  person  who  had  any  claims  to  respectability  contributed 
voluntarily.  He  did  not  like  to  hear  so  much  said  about  the  supe- 
rior goodness  of  the  seaports  compared  with  the  country  towns. 
He  was  a  Congregationalist,  but  he  was  in  favor  of  the  present 
resolution. 

Mr.  Dutton  said  he  should  make  no  apology  for  the  few  moments 
he  intended  to  occupy,  upon  these  resolutions.  He  was  opposed  on 
Saturday,  to  sending  them  to  the  committee,  and  he  did  not  know 
upon  what  principle  of  equity  or  even  courtesy,  the  indulgence  had 
been  granted ;  for  he  had  supposed  that  the  minority  were  as  much 
bound  by  rules  as  the  majority.  The  majority  of  the  Conven- 
tion, however,  after  one  refusal,  had  yielded,  and  the  resolutions 
were  now  to  be  disposed  of;  and  he  should  consider  it  an  abandon- 
ment of  his  duty,  if  he  discovered  less  perseverance  in  maintaining 
the  principles  of  the  majority,  with  whom  he  had  acted,  than  the 
gentleman  did  who  assailed  them.  This  was  the  fourth  attempt 
that  had  been  made  to  do  away  the  force  and  effect  of  the  great 
principle  in  the  bill  of  rights.  This  principle,  a  large  majority  had 
determined  to  maintain:  and  they  were  now  called  upon,  again,  to 
surrender  it  in  the  spirit  of  conciliation.  Many  moving  appeals  had 
been  made  to  the  candor  and  liberality  of  the  majority  ;  but  he 
would  ask  gentlemen  to  consider  what  was  the  true  meaning  of  this 
language.  In  his  apprehension  it  was  nothing  short  of  this — give 
us  all  we  ask  and  we  shall  be  satisfied — yield  the   principle   which 


MASSACHUSETTS     CONVENTION.  587 

you  have  sustained  in  every  form,  and  which  you  deem  vital  to  the 
best  welfare  of  the  State,  and  we  shall  be  content  ;  surrender,  at  this 
last  trial,  all  that  you  have  resolved  to  hold,  and  we  shall  give  up  the 
contest.  Let  it  be  remembered  that  the  majority  have  a^ted  on  the 
defensive  ;  that  they  have  been  compelled  to  defend  their  principles, 
assailed  as  they  have  been  in  every  form  that  ingenuity  could  sug- 
gest, and  with  a  perseverance  which  he  should  think  praiseworthy 
if  he  thought  the  object  so.  But  upon  this  subject  it  was  in  vain 
to  attempt  to  disguise  or  conceal  the  truth.  There  was  an  irrecon- 
cilable difference  of  opinion  ;  and  whenever  the  reverend  gentle- 
man and  his  friends  were  satisfied,  he  was  sure  he  should  not  be. 
The  conciliation  so  much  recommended,  demanded  everything  and 
gave  nothing ;  and  before  he  could  become  a  party  to  it.  he  must 
know  upon  what  terms  it  was  to  be  had.  The  gentleman  who 
introduced  these  resolutions  has  frankly  avowed  his  opinion  that 
religion  ought  not  to  be  supported  except  by  voluntary  contribution  : 
the  majority  have  determined,  after  a  long  and  repeated  discussion, 
that  it  is  not  only  the  unquestioned  right  of  the  State,  but  its  solemn 
duty  to  compel  men  by  law  to  maintain  the  public  worship  of  God 
in  all  cases  where  it  is  not  done  voluntarily.  Upon  this  subject  there 
can  be  no  compromise,  no  conciliation.  The  reverend  gentleman 
had  urged,  that  because  a  man  was  obliged  to  pay  his  taxes  where 
he  lived,  though  he  might  carry  them  where  he  attended  public 
worship,  it  made  one  denomination  of  Christians  subordinate  to 
another.  If  this  was  ever  true,  the  resolution  passed  this  morning 
placed  Congregationalists  on  the  same  footing  ;  but  in  truth  it  never 
came  within  the  meaning  of  the  clause  referred  to  in  the  consti- 
tution. The  amendment  which  has  passed  recognizes  the  existence 
of  unincorporated  societies.  He  had  voted  for  this,  but  he  could  go 
no  farther.  They  now  stood  on  the  same  ground  with  incorporated 
societies,  were  subject  to  the  same  duties,  and  equally  under  the 
control  of  the  Legislature.  But  these  resolutions  now  propose  to 
engraft  into  the  constitution  the  second  section  of  the  law  of  1811. 
He  was  wholly  opposed  to  this,  not  because  he  was  opposed  to  the 
law,  but  because  he  was  opposed  to  making  it  a  part  of  the  consti- 
tution. The  whole  difference,  in  his  opinion,  lay  between  having 
these  provisions  in  a  law,  and  having  them  in  a  constitution.  So 
long  as  they  remained  a  law,  they  were  subject  to  revision  and 
modification.  Abuses  might  hereafter  exist,  which  would  require 
to  be  corrected.  The  law  had  been  in  operation  only  ton  years; 
a  much  longer  time  was  necessary  to  ascertain  its  bearing  and  influ- 
ence. He  did  not  know  that  any  great  abuses  now  existed,  but  he 
was  not  wise  enough  to  foresee  that  none  would  exist  fifty  years 
hence,  nor  foolish  enough  to  say  that  the  Legislature  should  not 
have  the  power  to  correct  them  when  they  did  exist.  It  was  not 
wise  to  attempt  to  bind  by  an  unchanging  law,  the  ever  changing 
interests  and  opinions  of  men  ;  fix  forever  in  one  place  that  which  is 
in  its  nature  mutable  and  progressive.  Laws  can  always  be  accom- 
modated to  the  existing  state  of  things.     As   property  accumulates. 


588  MASSACHUSETTS    CONVENTION. 

as  the  labors  and  occupations  of  men  are  more  divided  and  subdi- 
vided ;  as  neAV  rights  and  interests  spring  up,  as  opinions  and  senti- 
ments change,  the  law  keeps  pace  with  them  all.  It  is,  and  always 
ought  to  be,  the  index  which  marks  the  progress  and  the  changes  of 
society.  On  the  other  hand,  the  constitution  is  and  always  ought 
to  be  a  body  of  general  rules.  The  great  outlines  only  are  drawn, 
the  filling  up  ought  to  be  left  to  the  sound  discretion  of  the  Legisla- 
ture. General  powers  are  granted,  and  general  duties  are  enjoined  ; 
but  the  incidental  powers  and  means  are  to  be  developed  and  applied 
by  the  Legislature,  according  to  the  exigencies  of  the  times.  It 
often  happens  that  a  law  does  not  accomplish  the  good  or  prevent 
the  mischief  it  intended  ;  and  the  statute  books  are  full  of  acts  in 
alteration  or  amendments  of  acts.  The  inference  from  this  is,  that 
the  foresight  and  the  judgment  of  men  are  fallible  ;  and  that  all  such 
details  should  be  within  the  control  of  the  Legislature.  He  had 
opposed  the  introduction  of  all  details  and  minute  provisions,  into 
the  constitution,  as  well  upon  other  subjects  as  this  ;  and  as  the 
present  resolutions  were  merely  the  details  of  an  existing  law,  he 
was,  for  the  reasons  lie  had  given,  opposed  to  them.  In  addition 
to  the  arguments  urged  against  the  resolutions  by  the  gentleman 
from  Newburyport,  which  he  thought  conclusive,  he  would  remark, 
that  if  the  reverend  gentleman's  object  was  to  secure  the  right  of 
maintaining  public  worship  by  voluntary  contribution,  he  had  it 
now  by  the  constitution.  It  was  only  those  who  refused  to  support 
it  at  all,  in  any  way,  that  the  law  would  compel  to  do  their  duty  ; 
and  why  should  not  the  law  compel  the  performance  of  this  highest 
duty,  as  well  as  of  any  other.  It  is  admitted  to  be  a  duty,  in  the 
discharge  of  which  the  State  is  interested,  and  if  the  State  does  its 
duty,  this  will  always  be  exacted.  If,  then,  the  resolutions  had  no 
other  object  than  to  provide  for  the  support  of  public  worship  by 
voluntary  contribution,  they  were  needless  ;  if  they  had  other  ob- 
jects, he  was  opposed  to  them,  because  he  did  not  know  precisely 
what  those  objects  were,  nor  what  would  be  the  effect  of  such  pro- 
visions. When  he  understood  the  avowed  opinions  of  the  gentlemen 
who  supported  these  resolutions,  and  their  perseverance  in  them,  his 
fears  were  awakened  ;  and  he  would  say  of  them,  what  Laocoon 
said  to  his  countrymen,  respecting  a  certain  religious  offering  of  the 
Greeks, 

"  Quicquid  id  est,  timeo  Danaos  et  dona '  ferentes .'" 

Mr.  Story  opposed  the  proposition.  It  was  his  misfortune  to  be 
absent  when  this  subject  was  before  discussed,  and  he  had  taken  no 
part  in  this  question.  It  was  proper  to  consider  what  was  already 
done.  The  Convention  had  determined  by  a  large  majority  that  it 
was  fit  and  proper  that  the  Legislature  should  be  invested  with 
authority  to  require  that  towns,  parishes  and  religious  societies  shall 
make  provision  for  the  institution  of  the  public  worship  of  God, 
and  the  support  of  religious  teachers  in  all  cases  where  it  is  not 
done  voluntarily — they  had  placed  the  rights  and  duties  of  unincor- 
porated societies  on  the  same  footing  with  those  that  are  incorpo- 


MASSACHUSETTS    CONVENTION.  589 

rated — they  had  extended  the  right  of  withdrawing  from  a  territo- 
rial parish  so  as  to  permit  a  person  to  go  from  one  society  to  another 
of  the  same  denomination  and  pay  his  taxes  there.  In  adopting 
these  indulgences  they  had  given  the  greatest  latitude  consistent 
with  the  preservation  of  the  general  principle.  So  far  he  was  not 
only  willing,  but  anxious  to  go.  But  they  must  stop  somewhere. 
The  proposition  now  offered,  if  adopted  in  the  constitution,  would 
really  and  vitally  destroy  the  main  principle  which  had  been  estab- 
lished. They  would  establish  the  principle  in  form,  but  would  pro- 
vide the  means  by  which  its  object  might  be  completely  and  silently 
done  away.  They  had  made  already  such  provision  that  the  right 
of  equality  of  denominations  could  not  be  sacrificed,  but  if  they 
engrafted  this  proposition  into  the  constitution,  it  would  take  away 
the  power  of  the  Legislature  to  compel  the  support  of  public  wor- 
ship in  any  part  of  the  Commonwealth.  Its  tendency  would  be  by 
taking  the  subject  out  of  the  sphere  of  legislation,  to  put  it  out  of 
the  reach  of  law.  He  had  no  objection  to  its  remaining  as  a  law, 
and  there  was  no  probability  that  it  would  be  repealed  unless  it  was 
abased.  If  it  was  in  the  constitution,  the  Legislature,  the  courts 
and  juries  would  be  bound  by  their  oaths  to  sanction  even  the 
abuses  that  might  be  committed  under  it.  Should  it  be  repealed. 
the  great  principles  of  it  are  already  adopted  in  the  amendments 
agreed  to — that  unincorporated  societies  shall  be  put  on  the  footing 
of  those  that  are  incorporated,  and  that  every  person  shall  be  free 
to  go  to  what  society  he  pleases,  and  have  his  taxes  paid  to  the  sup- 
port of  religious  instruction  there. 

Mr.  Lincoln  of  Worcester  said  that  what  the  ultra  liberals  and 
the  ultra  royalists  in  religion  had  acquiesced  in,  seemed  to  be  a 
point  at  which  we  ought  to  stop.  If  this  proposition  were  made 
originally,  before  any  other  propositions  had  been  accepted,  it  would 
have  been  entitled  to  a  more  favorable  hearing  ;  but  the  Convention 
had  adopted  a  principle  that  was  repugnant  to  it.  He  had  fore- 
warned certain  gentlemen  that  they  were  yielding  more  than  they  in- 
tended ;  but  they  acted  for  themselves,  and  he  acted  consistently  in 
holding  them  to  their  concessions.  The  Congregationalists  were 
not  contending  for  superior  privileges,  but  while  they  were  willing 
on  the  one  hand  to  extend  to  other  denominations  an  equality  of 
rights  and  immunities,  they  were  not  willing  on  the  other  to  be 
bound  in  fetters,  as  they  would  be  by  this  resolution.  For  what 
was  the  third  resolution  of  the  committee  on  the  declaration  of 
rights  which  had  been  adopted  by  the  Convention  ?  That  resolu- 
tion makes  it  imperative  on  the  Legislature  to  compel  Congrega- 
tional societies  to  support  public  worship.  While  by  this  the  gen- 
tlemen compel  Congregationalists  to  support  public  worship,  why 
should  they  call  upon  Congregationalists  to  free  them  from  any 
compulsion  ?  If  the  third  resolution  was  a  part  of  their  proceedings 
which  it  was  too  late  to  alter,  it  was  improper  to  call  upon  Congre- 
gationalists alone  to  support  public  teachers.  All  he  contended  for 
was  equal  rights.     He  stood  there  as  a  Congregationalist   to  resist 


590  MASSACHUSETTS    CONVENTION. 

being  put  under  subordination.  But  if  the  proposition  of  the  gen- 
tleman from  Boston  should  be  adopted,  there  would  be  subordina- 
tion. And  of  whom  ?  Of  the  Congregationalists  ;  if  you  compel 
them  to  pay  for  the  support  of  religion  and  exonerate  every  other 
denomination  of  Christians.  Let  the  gentleman  from  Boston,  he 
said,  consider  that  by  the  third  resolution  it  is  provided  that  every 
society,  incorporated  or  unincorporated,  shall  support  public  wor- 
ship. And  what  was  the  resolution  passed  in  the  morning  ?  That 
every  citizen  shall  appropriate  his  contributions  to  whatever  society 
he  pleases.  He  asked  if  by  these  provisions  all  classes  of  Christians 
were  not  on  the  same  footing.  If  then  you  provide  that  a  Congre- 
gationalist  shall  support  religion  and  compel  him  to  support  a  teach- 
er of  his  denomination,  it  was  altogether  unequal  to  pass  this  reso- 
lution for  giving  an  exemption  to  others.  In  this  way,  he  con- 
tended, gentlemen  did  make  a  subordination.  He  was  willing  to 
go  as  far  in  liberality  as  any  man,  but  there  was  a  point,  where  he 
must  pause  ;  and  instead  of  putting  all  other  denominations  in  sub- 
ordination to  Congregationalists,  he  could  not  consent  to  put  Con- 
gregationalists in  subordination  to  every  other  denomination. 

The  question  was  taken  on  Mr.  Baldwin's  resolution  and  decided 
in  the  negative — 74  to  218. 

The  resolution  providing  that  any  counsellor  may  be  qualified  in 
the  recess  of  the  Legislature,  by  the  governor  alone,  or  by  the  lieu- 
tenant governor  and  any  counsellor  who  has  been  previously  quali- 
fied, was  read  and  agreed  to. 

The  committee  proceeded  to  the  consideration  of  the  resolution, 
proposing  to  have  sheriffs  elected  by  the  respective  counties,  instead 
of  being  appointed  by  the  governor  and  council. 

Mr.  Lincoln  of  Worcester  supported  the  resolution.  He  said  he 
had  received  a  letter  from  the  mover,  (Mr.  Valentine)  and  he  ac- 
corded in  the  views  of  that  gentleman.  The  office  of  sheriff  was  a 
very  important  one.  The  appointment  of  deputies  gives  it  great 
patronage,  and  it  was  the  most  lucrative  office  in  the  Common- 
wealth. The  duties  of  it  affected  immediately  the  people.  He 
understood  from  the  gentleman  who  offered  the  resolution,  that  they 
should  be  chosen  for  not  more  than  seven  years  nor  less  than  five. 
It  was  found  hitherto  that  they  were  the  creatures  of  the  governor. 
On  a  change  of  governor  the  people  might  be  deprived  of  the  sheriff, 
if  he  was  acceptable  to  them,  or  they  might  not  be  able  to  get  him 
removed,  if  he  was  not  acceptable.  This  grew  out  of  the  circum- 
stance, in  our  frame  of  government,  that  a  governor  might  be 
elected,  against  the  will  of  a  majority  in  any  one  county. 

Mr.  Fay  of  Cambridge  said  he  rose,  because  he  saw  no  other  gen- 
tleman disposed  to  answer  the  remarks  of  the  gentleman  from  Wor- 
cester. He  agreed  that  the  office  was  a  very  important  one,  and 
that  the  people  were  very  much  interested  in  it :  but  it  did  not 
therefore  follow  that  the  sheriff  should  be  elected  by  the  people. 
The  sheriff  was  an  executive  officer,  and  ought  to  be  appointed  by 
the  governor.     If  he  was  chosen  by  the  people,  he  would  be  making 


MASSACHUSETTS    CONVENTION.  591 

favor  for  his  next  election.     The  governor  would  have   only  the 
good  of  the  people  in  view. 

Mr.  Pickman  of  Salem  said  he  agreed  entirely  with  the  gentle- 
man who  last  spoke.  The  officers  would  be  better  selected  by  the 
governor  and  council  than  by  the  people.  Until  the  unhappy  year 
of  1808,  the  office  was  always  considered  as  holden  during  good 
behavior.     He  hoped  such  times  would  not  recur. 

The  question  was  taken  on  the  resolution  and  decided  in  the 
negative — 141  to  161. 

The  committee  rose,  and  reported  their  disagreement  to  the  reso- 
lutions of  Messrs.  Baldwin  and  Valentine,  and  their  agreement  to 
the  resolution  respecting  the  qualifying  of  counsellors. 

The  Convention  concurred  with  the  committee  of  the  whole  in 
rejecting  the  resolution  offered  by  Mr.  Baldwin.  They  also  con- 
curred in  rejecting  the  resolution  of  Mr.  Valentine,  respecting 
sheriffs— 179  to  82. 

The  resolution  respecting  the  qualifying  of  counsellors,  was  read 
a  first  and  second  time  and  passed. 

The  resolution  offered  by  Mr.  Fay,  for  providing  that  all  moneys 
paid  by  the  subject  for  the  support  of  public  worship  and  of  the 
public  teachers  of  piety,  religion  and  morality,  shall,  if  he  request 
it,  be  applied  to  the  public  teacher  or  teachers,  if  any,  on  whose  in- 
struction he  attends,  whether  of  the  same  or  of  a  different  sect  or 
denomination  from  the  society  in  which  the  moneys  are  raised,  was 
read  a  first  time  and  passed  to  a  second  reading — 205  to  79. 

The  resolution  being  read  a  second  time, 

Mr.  Bartlett  of  Medford  moved  to  amend  by  adding  a  provision 
that  the  taxes  raised  upon  the  real  estate  of  non-resident  proprietors 
shall  be  applied  towards  the  support  of  public  worship  in  the  town, 
precinct  or  parish  where  the  land  is  situated,  unless  the  proprietor 
or  proprietors  shall  be  of  a  different  sect  or  denomination  of  Christ- 
ians from  those  by  whom  the  said  taxes  are  assessed.  Mr.  B.  said 
the  operation  of  the  resolution  was  to  put  persons  leaving  their  own 
society  and  joining  another  of  the  same  denomination,  on  the  same 
footing  with  those  who  join  a  society  of  a  different  denomination. 
He  did  not  object  to  it,  since  it  appeared  to  be  the  wish  of  members 
generally,  that  such  a  provision  should  be  made  ;  but  he  saw  there 
would  be  a  great  door  open  for  litigation.  Christians  of  the  same 
denomination  would  claim  against  each  other  ;  the  Congregationalist 
against  the  Congregationalist.  Gentlemen  had  complained  of  the 
difficulty  and  unkind  feeling  arising  from  their  being  obliged  to 
draw  out  of  the  hands  of  the  treasurers  the  moneys  due  to  them. 
He  proposed  to  put  this  little  amount  out  of  the  way  of  dispute, 
only  between  those  of  the  same  denomination.  The  injury  would 
be  much  greater  from  permitting  it  to  be  a  subject  of  contention, 
than  from  leaving  it  to  go  to  the  support  of  public  worship  in  the 
town  where  the  land  is  situated.  This  provision  will  not  affect  the 
Congregational  minister  of  the  town  where  the  taxes  are  raised,  as 
he  has  a  settled  salary ;   but  some  ministers  would  otherwise  have 


592  MASSACHUSETTS    CONVENTION. 

an  increase  of  their  income  from  the  taxes  raised  in  towns  where 
neither  themselves  nor  their  parishioners  resided.  For  the  con- 
struction of  the  resolution  will  be,  that  a  minister  may  call  for  such 
taxes,  raised  in  a  society  of  the  same  denomination  with  himself. 

The  question  was  taken  on  the  amendment  and  decided  in  the 
negative. 

The  resolution  then  passed. 

Mr.  Webster  moved  as  a  separate  resolution  the  amendment 
which  had  been  offered  by  Mr.  Bartlett.  He  said  he  could  not 
resist  the  argument  of  justice.  He  wished  to  know  why  the  men 
who  lived  in  a  town  and  raised  the  value  of  the  land  of  non-resi- 
dents, by  expending  money  for  the  maintenance  of  moral  and  relig- 
ious instructions,  had  not  a  right  to  call  on  the  proprietors  of  the 
land  to  contribute.  It  was  a  plain  and  obvious  dictate  of  common 
justice. 

Mr.  Blake  said  he  perfectly  agreed  with  the  gentleman  that  the 
lands  should  be  taxed,  but  he  thought  there  was  an  insurmountable 
difficulty  how  to  determine  whether  they  belonged  to  a  person  of  a 
different  sect.  An  inquisitorial  committee  would  be  necessary  for 
this  purpose. 

Mr.  Flint  of  Reading  said  that  if  the  taxes  of  the  lands  in  some 
towns  belonging  to  non-residents,  were  withdrawn  from  the  towns 
where  the  lands  were  situated,  the  burden  of  maintaining  public 
worship  would  be  intolerable. 

Mr.  Tillinghast  said  it  was  not  in  order  to  debate  the  resolution 
as  it  had  not  been  through  a  committee  of  the  whole. 

Mr.  Saltonstall  moved  that  it  be  committed  to  a  committee  of 
the  whole. 

Mr.  CIuincy  spoke  in  favor  of  the  commitment.  He  said  that 
there  were  lands  lying  in  different  parts  of  the  Commonwealth, 
owned  by  inhabitants  of  the  single  town  of  Boston,  to  the  amount 
probably  of  two  or  three  hundred  thousand  dollars  in  value,  which, 
although  belonging  to  non-residents,  ought  to  be  taxed  to  the  sup- 
port of  the  ministry  in  the  towns  where  those  lands  lie  ;  and  that  a 
contrary  principle  would  tend  greatly  to  the  injury  of  particular 
towns  of  the  Commonwealth,  by  impairing  their  power  to  support 
religious  worship. 

Mr.  Lincoln  of  Worcester  said  he  should  think  the  adoption  of 
this  resolution  a  violation  of  all  that  had  been  done.  They  had 
voted  that  all  the  moneys  paid  by  the  subject  for  the  support  of 
public  worship  should  be  appropriated,  if  he  requested  it,  to  the  sup- 
port of  the  public  teacher,  on  whose  instructions  he  attended.  The 
present  resolution  would  give  an  advantage  to  other  sects  over  the 
Congregationalists.  Some  gentlemen  in  the  country  owned  estates 
in  Boston,  and  this  resolution  would  operate  unequally,  because 
taxes  for  public  worship  are  not  assessed  territorially  in  Boston. 
The  proposition  of  the  gentleman  from  Salem,  similar  to  this,  had 
been  rejected  by  a  majority  of  yearly  100  to  1.  There  was  very 
little  land  of  non-residents  in  the  country.     No  good  reason  could 


MASSACHUSETTS     CONVENTION.  593 

be  given  for  going  into  committee  of  the  whole  upon  this  resolution 
at  this  late  hour  of  the  session. 

Mr.  Flint  said  the  gentleman  was  not  aware  how  much  the 
towns  near  the  seaboard  would  be  affected  by  this  resolution.  It 
would  not  operate  so  extensively  on  property  fifty  miles  back. 

Mr.  Richards  of  Plainfield  said  that  in  the  town  in  which  he 
lived,  there  were  six  hundred  acres  of  land  belonging  to  one  man 
who  lived  now  in  the  city  of  New  York.  It  seemed  to  him  very 
unreasonable  that  all  the  taxes  on  this  land  should  be  carried  out  of 
the  town.  The  intrinsic  value  of  the  land  was  increased  by  the 
diffusion  of  religious  and  moral  instruction  among  the  inhabitants 
of  the  town.  He  hoped  the  House  would  go  into  committee  of  the 
whole. 

Mr.  Webster  said  that  if  they  made  changes  in  the  third  article, 
giving  liberty  to  persons  to  leave  their  own  societies  and  join  others 
of  the  same  denomination,  they  ought  to  make  modifications  in  re- 
spect to  taxes,  in  order  to  conform  to  those  changes.  He  had  no 
houses  in  town,  nor  farms  in  the  country ;  he  contended  for  the 
principle.  Every  man  is  bound  to  pay  for  the  moral  principle  which 
is  raised  in  the  community  by  public  worship  and  religious  instruc- 
tions. He  asked  if  it  was  not  a  demonstrable  truth,  that  the  value 
of  property  was  increased  by  the  cultivation  of  religion  and  good 
morals  among  the  people  where  it  was  situated.  Take  the  case  of 
property  owned  by  persons  out  of  the  State,  as  mentioned  by  the 
gentleman  from  Plainfield.  Have  we  not  a  right  to  tax  it  when  we 
are  raising  its  value  ?  As  to  the  late  hour  at  which  this  proposition 
is  brought  forward,  he  said  they  had  already  adopted  a  modification 
of  the  third  article  at  a  late  hour — a  modification  for  which  he  had 
voted,  though  reluctantly  ;  reluctantly,  because  it  was  in  opposition 
to  the  sentiments  of  gentlemen  whose  characters  and  opinions  he 
respected. 

Mr.  J.  Phillips  of  Boston  said  he  was  a  stranger  till  this  half 
hour  to  the  nature  of  the  present  question,  but  if  it  was  a  fact  that 
the  inhabitants  of  the  town  of  Boston  could  withdraw  all  the  taxes 
raised  upon  the  lands  owned  by  them  in  the  neighboring  towns  for 
the  support  of  public  worship,  he  hoped  the  House  would  go  into 
committee  of  the  whole  on  this  resolution. 

The  question  was  taken  for  commitment  and  determined  in  the  af- 
firmative—188  to  121. 

A  motion  was  made  that  the  House  should  go  into  committee  of 
the  whole  to-morrow  at  9  o'clock.  Negatived.  The  House  then 
resolved  itself  into  committee  of  the  whole,  Mr.  Dana  in  the  chair. 

The  resolution  being  read,  Mr.  Thorndike  moved  to  strike  out 
that  part  of  it  which  excepts  the  estate  of  persons  of  other  denom- 
inations. 

Mr.  Wilde  had  himself  no  objection  to  striking  out  the  excep- 
tion, but  thought  it  would  embarrass  the  question  and  might  endan- 
ger the  whole  resolution.  He  thought  it  would  be  a  preferable 
course  if  the  gentleman  would  withdraw  his  motion  and  call  for  a 
division  of  the  question. 
75 


594  MASSACHUSETTS    CONVENTION. 

The  Chairman  thought  the  resolution  was  not  susceptible  of  di- 
vision. 

Mr.  Webster  said  the  object  could  be  effected  in  another  mode. 
For  the  purpose  of  trying  the  sense  of  the  House,  first  on  the  general 
proposition  without  the  exception,  he  moved  to  amend  by  striking 
out  the  whole  resolution  and  inserting  the  proposition  of  Mr.  Ab- 
bott, that  all  real  estate  of  non-residents  shall  be  liable  to  taxation 
for  the  support  of  public  worship  in  the  towns  or  parishes  in  which 
it  is  situated.  He  said  it  was  well  known  there  were  extensive  and 
valuable  tracts  of  land  belonging  to  corporations,  and  to  persons  out 
of  the  State,  and  to  other  states.  There  were  lands  in  the  county 
of  Berkshire  worth  more  than  a  hundred  thousand  dollars,  belong- 
ing to  the  State  of  Connecticut.  It  would  be  difficult  to  say  of 
what  denomination  this  State  is. 

Mr.  Lincoln  moved  to  amend  the  resolution  in  such  manner  that 
the  non-resident  proprietor  shall  have  power  to  direct  the  appropria- 
tion of  the  tax  to  the  support  of  his  religious  teacher. 

Mr.  L.  said  it  was  more  congenial  to  his  own  feelings  that  religion 
should  be  supported  by  a  tax  than  in  any  other  mode.  He  had  felt 
constrained  to  advocate  a  contrary  doctrine  rather  in  deference  to 
the  feelings  of  those  he  represented  than  in  conformity  with  his  own 
opinions.  If  the  estate  of  non-residents  was  to  be  taxed  for  this 
object,  it  ought  to  be  in  the  power  of  the  owner  to  have  the  tax 
applied  towards  the  support  of  the  religious  teacher  whom  he  ap- 
proved. 

Mr.  Thorndike  opposed  the  amendment.  It  was  for  the  advan- 
tage of  every  estate  that  religious  worship  and  moral  and  religious 
instruction  should  be  maintained  in  the  town  where  it  was  situated. 
It  might  be  presumed  that  in  the  aggregate  one  religious  society 
would  be  as  much  benefited  by  it  as  another. 

Mr.  Webster  said  that  the  amendment  would  do  away  the  whole 
object  of  the  resolution,  and  would  be  opposed  to  the  principle  on 
which  it  was  founded.  If  there  was  anything  sound  in  the  prin- 
ciple on  which  the  whole  of  the  third  article  was  founded,  it  was 
that  the  maintenance  of  religious  worship  and  instruction  tended  to 
improve  the  state  of  society,  and  to  give  an  additional  value  to  every- 
thing in  the  place  where  it  was  supported.  The  gentleman  from 
Worcester  had  told  us  that  his  votes  here  had  been  rather  in  defer- 
ence to  the  opinions  of  others,  than  in  obedience  to  his  own  opinion. 
He  wished  the  gentleman  would  inform  the  House  when  he  gave 
his  own  opinions,  and  when  those  of  his  constituents,  that  they 
might  be  able  to  judge  what  degree  of  weight  they  were  entitled  to. 

Mr.  Lincoln  said  that  he  represented  the  views  of  his  constituents, 
and  this  was  all  he  should  say  in  reply  to  the  remark  of  the  gentle- 
man who  last  spoke.  The  other  gentleman  from  Boston,  (Mr. 
Thorndike,  )  did  not  understand  his  argument.  It  was  that  a  minis- 
ter may  be  entirely  supported  by  taxes  on  lands  of  non-resident  pro- 
prietors of  a  different  denomination  from  himself.  The  resolution 
would  operate  unequally.     Those  born  in  a  parish  incorporated  a 


MASSACHUSETTS     CONVENTION.  595 

hundred  years  ago.  would  be  privileged  over  one  newly  erected,  in 
the  same  town. 

Mr.  Baldwin  asked  if  this  resolution  could  be  adopted  without 
undoing  what  had  been  done  in  giving  a  person  power  to  carry  all 
his  taxes  with  him  to  the  teacher  on  whom  he  attended. 

Mr.  Webster  said  it  was  not  repugnant  to  the  resolution  which 
had  been  adopted,  but  was  a  qualification  ;  an  exception  to  the  gen- 
eral principle.  If  the  gentleman  from  Worcester  wished  to  have  the 
ministerial  taxes  paid  to  some  person  in  the  town  according  to  the 
desire  of  the  owner  of  the  land,  he  had  no  objection.  All  he  con- 
tended for.  was,  that  they  should  not  be  drawn  from  the  town. 

Mr.  Blake  said  he  saw  no  repugnance  between  the  present  reso- 
lution and  the  one  which  had  been  adopted.  The  case  of  non-resi- 
dent proprietors  had  not  been  provided  for.  He  saw  no  reason  why 
a  tax  for  a  highway  or  for  a  school  should  not  be  drawn  away  from 
the  town  where  it  is  raised,  just  as  well  as  a  tax  for  the  support  of 
public  worship. 

The  amendment  proposed  by  Mr.  Lincoln,  was  negatived. 

The  question  recurring  on  Mr.  Webster's  amendment, 

Mr.  Varnum  said  it  was  improper  to  introduce  new  propositions  at 
this  late  period  of  the  session,  when  many  of  the  members  had  gone 
home.  This  amendment  would  do  away  the  effect  of  a  resolution 
which  had  been  adopted.  Gentlemen  were  going  to  compel  societies 
to  support  public  worship,  but  were  depriving  them  of  the  means. 
They  were  requiring  the  full  tale  of  brick,  but  were  taking  away  the 
straw.  If  the  gentleman  wanted  to  pay  his  own  contributions  to 
the  support  of  his  Congregational  friends,  he  had  no  objection ;  but 
to  break  in  and  say  that  the  taxes  of  all  denominations  shall  be  paid 
to  one  particular  denomination — it  was  a  most  monstrous  violation 
of  everything  that  has  been  done. 

Mr.  Hoar  could  not  perceive  the  consistency  of  the  gentleman 
from  Dracut.  In  the  morning  he  was  advocating  the  resolution  that 
authorizes  any  person  to  go  from  the  parish  in  which  he  resides  to 
any  other  society  and  to  withdraw  his  ministerial  taxes.  He  now 
complains  that  we  are  requiring  of  all  religious  societies  the  full  tale 
of  brick  and  taking  from  them  their  means  by  this  resolution.  It  is 
the  reverse.  We  are  requiring  parishes  to  support  public  worship, 
and  we  wish  by  this  resolution  to  preserve  to  them  the  means  of  do- 
ing it.  We  have  done,  with  the  gentleman's  approbation,  precisely 
what  he  complains  of,  unless  this  resolution  is  adopted.  Mr.  H.  con- 
tended that  this  tax  ought  to  be  placed  on  the  footing  of  every  other 
tax  on  real  estate.  It  was  but  an  act  of  justice  to  the  parishes  where 
the  estate  was  situated.  No  other  tax  was  so  taken  away.  The 
proprietor  of  a  distant  estate  was  not  allowed  to  withdraw  the  high- 
way tax  for  repairing  the  highway  before  his  own  door,  nor  the 
school  tax  for  the  particular  education  of  his  own  children.  The 
amendment  was  of  greater  importance  than  some  gentlemen  might 
imagine.  Large  portions  of  many  towns  were  owned  by  persons  at 
a  distance.      The  quantity  of  land  in  the  Commonwealth  owned  by 


596  MASSACHUSETTS    CONVENTION. 

the  state   of  Connecticut  he   believed  was  greater  than  had  been 
stated. 

Mr.  Hyde  of  Lenox  moved  that  the  resolution  be  so  amended 
that  the  money  raised  by  taxes  on  non-resident  lands  be  equally  di- 
vided between  all  the  religious  societies  in  the  town,  in  proportion 
to  the  valuation  of  the  respective  societies. 

Mr.  Nichols  was  in  favor  of  the  amendment.  The  resolution  at 
present  gave  to  the  non-resident  proprietor  the  right  to  select  the 
society  to  which  the  tax  on  his  estate  should  be  paid.  When  the 
minister  was  unpopular,  very  few  persons  would  be  left  in  the  so- 
ciety, and  they  would  have  the  power  of  assessing  the  tax  on  non- 
residents. 

The  motion  was  negatived. 

Mr.  Tillinghast  moved  to  amend  the  resolution  so  as  to  confine 
the  right  of  taxing  to  lands,  the  proprietors  of  which  lived  out  of  the 
Commonwealth . 

The  motion  was  negatived. 

Mr.  Lincoln  of  Worcester  thought  the  whole  operation  of  the  res- 
olution was  not  understood.  It  was  a  virtual  repeal  of  the  provis- 
ions of  the  law  of  1811.  The  supreme  judicial  court  has  decided 
that  the  member  of  a  Baptist  society  who  owns  lands  that  are  taxed 
for  the  support  of  public  worship  in  a  town  where  he  does  not  reside, 
may  withdraw  the  tax  for  the  support  of  his  own  religious  teacher. 
Such  an  innovation  would  secure  the  rejection  of  the  whole  article. 
Those  who  belong  to  the  society  of  Friends  have  been  exempt  from 
all  taxation  for  the  support  of  religion  for  forty  years.  The  resolution 
if  agreed  to,  would  arm  every  dissenter  from  the  Congregational 
order  against  the  amendments,  and  would  certainly  be  the  means  of 
defeating  them. 

The  question  was  taken  and  the  resolution  agreed  to — 160  to  141. 
The  committee  rose,  and  reported  the  resolution  as  amended. 
To-morrow  at  half  past  9  o'clock  was  assigned  for  the  first  read- 
ing of  the  resolution. 

At  8  o'clock  the  Convention  adjourned. 


Tuesday,  January  9. 

The  House  was  called  to  order  at  a  quarter  before  10  o'clock,  and 
attended  prayers  offered  by  Rev.  Mr.  Jenks.  The  journal  having 
been  read, 

Leave  of  absence  was  granted  to  Messrs.  Chapin  of  Springfield, 
and  Mason  and  Waterman  of  Adams.  The  report  of  the  committee 
on  leave  of  absence,  on  several  other  applications,  being  under  con- 
sideration, 

Mr.  Martin  said  the  Convention  had  been  told  over  and  over  again 
that  if  members  of  the  house  of  representatives  were  paid  out  of  the 
public  chest,  how  contented  they  would  stay  here  and  take  care  of 
the  public  business.     He  thought  that  gentlemen  that  had  used  these 


MASSACHUSETTS    CONVENTION.  597 

arguments  ought  to  stay  here  until  the  business  of  the   Convention 
was  finished. 

Mr.  Story  wished  that  gentlemen  interested  in  the  subject  before 
the  House  would  give  way  for  a  moment  in  favor  of  a  proposition 
which,  if  acted  on  at  all,  must  be  very  soon.  The  resolution  adopt- 
ed last  evening  in  committee  of  the  whole  had  produced  a  consider- 
able excitement.  He  did  not  know  what  might  be  the  opinion  of 
the  House  with  respect  to  finally  passing  it,  in  the  state  in  which  it 
was,  but  he  hoped  it  might  be  so  modified  as  to  make  it  more  gen- 
erally acceptable. 

The  report  on  applications  for  leave  of  absence  was  laid  on  the 
table. 

Mr.  Story  moved  that  the  resolution  offered  by  Mr.  Bartlett, 
and  agreed  to  in  committee  of  the  whole,  be  committed  to  a  select 
committee. 

Mr.  Pickman  said  that  he  had  been  in  favor  of  the  resolution,  but 
when  he  saw  the  small  majority  by  which  it  was  adopted  in 
committee  of  the  whole,  and  when  he  considered  how  thin  the  House 
was  compared  with  what  it  had  been,  he  felt  unwilling  to  push  it 
through  the  House.  He  therefore  moved  that  the  subject  be  indefi- 
nitely postponed.  The  gentleman  from  Boston,  who  supported  the 
resolution,  (Mr.  Webster)  had  told  them  that  he  had  neither  houses 
nor  lands  in  town  or  country  that  would  be  affected  by  the  amend- 
ment ;  but  he  possessed  what  was  infinitely  more  valuable,  talents 
of  the  highest  order,  which  if  he  would  condescend  to  apply  to  the 
acquisition  of  property,  would  enable  him  to  possess  houses  and  lands 
both  in  town  and  country.  It  might  be  supposed  that  he,  Mr.  P., 
was  the  owner  of  non-resident  lauds — but  he  did  not  own  a  particle 
of  real  estate  that  would  be  in  the  least  affected  by  this  resolution. 
But  he  thought  it  was  their  duty  to  abandon  the  measure,  in  the 
present  state  of  the  House,  when  they  saw  how  small  a  majority  of 
the  members  were  in  favor  of  it. 

Mr.  Hazard  of  Hancock  hoped  the  resolution  would  be  postponed. 
It  contained  a  new  principle,  and  many  of  the  members  had  gone 
home  under  the  expectation  that  nothing  of  the  kind  would  be  done. 
In  the  town  which  he  represented,  many  Quakers  and  Shakers  lived, 
who,  it  was  well  known,  supported  Christianity  in  their  own  way, 
and  they  owned  lands  in  other  towns  which  by  this  amendment 
would  be  made  subject  to  taxation. 

Mr.  Webster  was  sorry  that  the  mover  of  the  postponement,  who 
had  been  one  of  the  supporters  of  the  resolution,  had  now  abandoned 
it.  It  was  unpleasant  to  be  deserted  by  one's  own  friends.  The 
gentleman  says  it  passed  by  too  small  a  majority,  and  for  that  reason 
it  ought  to  be  abandoned.  This  was  a  reason  for  desisting  from  a 
just  and  proper  measure,  which  he  (Mr.  W.  )had  not  applied  to  prop- 
ositions of  his  own.  He  had  brought  forward  a  measure  which, 
after  four  days'  debate,  passed  by  a  majority  of  seven.  He  says  it  is 
brought  forward  too  late  in  the  session.  It  was  not  introduced  later 
than  the  original  proposition,  to  which  this  is  an  accessory.     They 


598  MASSACHUSETTS    CONVENTION. 

were  cotemporaneous.  He,  (Mr.  W.)  bad  not  heard  a  shadow  of  an 
argument  against  the  principle  of  the  resolution.  Modifications  had 
been  suggested  which  might  be  proper ;  he  was  therefore  in  favor 
of  the  motion  to  commit.  But  before  the  proposition  was  rejected, 
he  wished  to  see  it  met  with  an  argument  on  its  principle — to  see  its 
injustice.  He  hoped  the  motion  for  postponement  would  not  pre- 
vail. Gentlemen  had  concurred  in  passing  the  principal  measure 
late  in  the  session,  but  it  was  too  late  to  make  the  necessary  modi- 
fications of  it.  If  modifications  and  qualifications  were  not  made, 
the  amendments  would  be  opposed  and  rejected  by  the  people.  He 
hoped  the  modifications  which  had  been  already  agreed  to  by  a 
majority  of  twenty — three  times  that  by  which  the  resolution  direct- 
ing the  mode  of  choosing  the  council  was  passed — would  be  suf- 
fered to  pass. 

Mr.  Cummings  was  in  favor  of  the  postponement.  He  said  the  law 
had  been  misunderstood.  The  lands  of  persons  not  resident  in  the 
State  are  now  taxable — lands  of  corporations  are  taxable  where  the 
lands  happen  to  lie — and  for  lands  belonging  to  non-resident  individ- 
uals, the  tenants  are  liable  to  be  taxed.  It  had  been  said  there 
were  lauds  of  a  large  amount  in  the  country  not  tenanted.  This 
was  not  the  fact.  Almost  all  the  farms  not  in  the  towns  where  their 
owners  reside,  are  leased.  In  the  county  of  Essex  he  did  not  know 
of  a  single  estate  which  was  not  tenanted  and  liable  to  be  taxed. 

Mr.  Blake  hoped  the  subject  would  not  be  postponed.  He  did 
not  think  there  was  much  weight  in  the  arguments  against  altera- 
tions of  the  constitution  founded  on  the  present  provisions  of  the 
law.  He  contended  that  this  amendment  was  rendered  necessary 
by  the  alterations  which  had  already  been  made  ;  that  the  late 
period  of  the  session  ought  not  to  be  urged  as  a  reason  for  rejecting 
it ;  and  that  what  had  been  done  would  be  entirely  unacceptable  to 
the  people,  unless  this  resolution  was  adopted.  He  hoped  it  would 
not  be  postponed,  but  that  the  motion  to  commit  would  prevail. 

Mr.  Saltonstall  thought  his  friend  and  colleague  last  speaking 
could  not  be  aware  of  the  adoption  of  the  resolution  of  the  gentle- 
man from  Cambridge,  authorizing  any  person  to  apply  all  the 
moneys  paid  by  him  for  the  support  of  public  worship,  to  the  teacher 
on  whose  instruction  he  attends,  whether  of  the  same  or  of  a  differ- 
ent1 denomination  from  that  of  the  parish  in  which  the  money  is 
raised.  This  will  make  a  great  change  in  our  religious  establish- 
ments, Mr.  S.  said,  and  he  feared  the  consequences  under  any 
qualification.  It  may,  in  effect,  reduce  all  our  territorial  parishes 
to  poll  parishes.  Of  what  avail  will  be  the  right  to  tax  the  property 
within  certain  limits,  when  at  the  same  time  we  authorize  the 
owners  to  withdraw  the  taxes,  and  apply  them  as  they  please,  some 
to  one  minister,  some  to  another,  even  of  the  same  denomination  ? 
He  feared  the  effect  on  the  permanency  and  validity  of  ministerial 
contracts.  How  much  will  a  settlement  contract  be  worth  to  a 
minister,  when  the  next  year  his  whole  parish  may  slide  from  under 
him  ?     There  is  danger,  also,  that  aged  ministers  may  be  deserted, 


MASSACHUSETTS    CONVENTION.  599 

should  a  popular  young  man  be  settled  near.  Many  gentlemen,  he 
said,  differed  from  him,  and  he  hoped  his  fears  were  groundless  ; 
but  some  modification  is  necessary.  By  this  resolution,  non-resident 
taxes,  as  well  as  others,  may  be  withdrawn,  if  the  proprietor  requests 
it.  Heretofore,  these  have  been  applied  to  the  support  of  public 
worship  in  the  parish  where  the  land  is  situated,  unless  the  owner 
is  of  a  different  denomination.  This  is  essential  to  the  existence  of 
many  parishes,  and  ought  to  be  continued.  The  vote  of  last  eve- 
ning goes  farther,  and  authorizes  the  appropriation  of  all  taxes  on 
non-resident  lands,  whether  the  owner  be  of  the  same  or  of  a  differ- 
ent denomination.  This  is  right  in  principle,  and  no  one  has  yet 
met  it  in  argument.  Why  should  they  not  be  taxed  for  this,  as 
well  as  for  schools  or  any  other  purpose,  which  tends  directly  or 
indirectly  to  enhance  the  value  of  the  property  ?  It  is  not  for  the 
benefit  of  any  particular  denomination,  but  of  the  town  or  parish  of 
whatever  denomination  ;  for  the  constitution  knows  no  distinction, 
has  no  preference.  This,  however,  had  not  been  practised  ;  and 
Mr.  S.  said  he  only  wished  to  preserve  the  constitution  and  law  as 
it  had  been  in  this  respect,  and  he  hoped  the  subject  would  be 
recommitted,  at  the  motion  of  his  friend,  for  the  purpose  of  being 
modified. 

Mr.  Hoar  said  he  believed  the  reason  why  the  proposition  giving 
every  person  liberty  to  separate  himself  from  the  parish  in  which 
he  resides,  and  to  withdraw  his  taxes,  passed  yesterday,  was  be- 
cause it  was  of  such  immense  magnitude  that  it  was  not  compre- 
hended. Its  operation  in  destroying  the  parishes  of  the  Common- 
wealth he  thought  was  not  seen  in  its  true  light.  He  would  name 
an  instance  of  its  operation,  as  it  respected  taxes  on  real  estate. 
Two-thirds  of  the  real  estate  in  the  town  of  Brookline,  he  was 
informed,  was  owned  by  persons  who  reside  in  Boston,  and  are 
taxed  there.  If  they  go  to  Brookline  in  summer,  it  is  in  May  or 
June,  and  they  are  not  taxable  there.  He  did  not  believe,  from  the 
well  known  liberality  of  the  gentlemen  so  situated  that  they  would 
withdraw  their  support  from  the  reverend  clergyman  there  :  but  it 
would  depend  on  persons  in  Boston,  and  not  on  the  people  of 
Brookline,  whether  he  should  continue  to  have  a  support.  The 
effect  of  the  alteration  would  be  of  immense  extent.  If  the  gentle- 
man who  moved  the  postponement  had  lived  in  the  country,  and 
had  seen,  as  he  had,  the  operation  of  causes  much  more  trifling 
than  this,  in  breaking  up  parishes,  he  would  not  countenance  the 
inconsistency  of  taking  up  and  forcing  through  a  proposition  of  this 
magnitude  in  one  day,  and  refusing  to  consider  the  modifications 
proposed  for  averting  a  part  of  its  evils. 

Mr.  Boylston  said  that  he  now  resided  in  the  town  of  Princeton  ; 
but  if  he  should  choose  to  fix  his  residence  at  Roxbury.  where  he 
had  sometimes  resided,  by  the  resolution  adopted  yesterday,  lie 
would  be  entitled  to  withdraw  his  ministerial  taxes  from  the  first 
named  town.  They  paid  a  salary  to  the  minister  there  of  six  hun- 
dred dollars,  and  a  fifth  part  of  the  tax  of  the  town  was  levied  on 


600  MASSACHUSETTS     CONVENTION. 

his  estate.  He  thought  his  estate  was  benefited  by  the  support  of 
religious  worship  and  instruction  to  the  full  amount  of  the  tax 
imposed  upon  it ;  and  he  thought  it  would  be  unjust,  and  imposing 
an  unreasonable  burden  on  the  people  there,  for  him,  in  case  of  his 
not  residing  in  the  town,  to  withdraw  the  tax. 

Mr.  Dana  considered  this  amendment  as  connected  with  that 
adopted  yesterday.  He  had  fears  respecting  them  both.  This 
was  objectionable,  in  extending  to  lands  of  persons  of  all  denomina- 
tions. The  Quakers  would  not  pay  the  tax,  but  would  let  the 
lands  be  sold.  He  should  have  preferred  to  leave  the  third  article 
as  it  was  before  the  adoption  of  the  resolution  yesterday.  But  as 
that  could  not  be  done,  he  was  in  favor  of  committing  this  proposi- 
tion, that  it  might  be  modified  so  as  to  remove  his  objections. 

The  question  was  taken,  and  the  motion  to  postpone  was  lost — 
142  to  176. 

The  motion  to  commit  was  agreed  to  ;  and  it  was  committed  to 
Messrs.  Story,  Hyde,  Bartlett,  Childs,  and  Wilde. 

It  was  ordered  that  the  committee  have  leave  to  sit  during  the 
session  of  the  House. 

Mr.  Jackson,  from  the  committee  for  reducing  the  amendments 
to  form,  moved  that  the  resolution  providing  that  the  votes  on  the 
amendments  returned  to  the  Secretary's  office  shall  be  counted  by  a 
committee,  and  certified  to  the  governor  and  to  the  Legislature,  be 
amended  by  adding  the  following ;  "  and  all  the  amendments  so 
ratified  and  adopted  shall  be  promulgated  and  made  known  to  the 
people  in  such  manner  as  the  General  Court  shall  order." 

Mr.  Jackson  said  it  had  been  determined  that  the  votes  should  be 
counted  by  a  committee  which  was  to  meet  a  week  before  the  ses- 
sion of  the  Legislature,  and  that  they  should  certify  the  result  to  the 
General  Court.  The  committee  which  had  reported  this  resolution 
had  thought  it  would  be  as  well  to  let  the  General  Court  decide  in 
what  way  the  result  should  be  proclaimed. 

The  amendment  was  agreed  to. 

Mr.  Jackson  moved  to  amend  the  article  relating  to  the  change 
of  the  political  year,  by  adding  after  the  provision,  that  the  gov- 
ernor, lieutenant  governor,  and  counsellors,  shall  hold  their  offices 
for  one  year  next  following  the  first  Wednesday  of  January,  the 
words,  "  and  until  others  are  chosen  and  qualified  in  their  stead/' 

The  amendment  was  agreed  to. 

Mr.  Dawes  called  the  attention  of  the  House  to  that  part  of  the 
resolution  directing  the  manner  in  which  the  votes  on  the  amend- 
ments are  to  be  given  by  the  people,  in  which  the  persons  voting 
are  to  express  their  opinion,  "  by  annexing  to  each  number  the 
word  'yes'  or  'no,'  or  any  other  words  that  may  signify  his  ap- 
probation or  disapprobation  of  the  proposed  amendment."  He 
thought  this  latitude  might  lead  to  difficulty.  It  would  permit  a 
man  to  read  a  whole  sermon — they  had  had  whole  sermons  read  in 
the  assembly — they  might  read  them  in  town  meeting  and  put 
them  on  file,  to  express  their  dissent  or  assent. 

Mr.  Quincy  said  his  colleague  had  expressed  a  part  of  his  objec- 


MASSACHUSETTS    CONVENTION.  601 

tion  to  the  resolution.  But  he  objected  to  that  part  of  it  which 
authorizes  any  one  to  "  give  his  vote  on  all  the  articles  or  any 
number  of  them  together,  at  his  election,  without  being  required 
to  vote  separately  and  specifically  upon  each  of  them."  He  said  it 
would  prevent  the  people  from  giving  distinct  votes  on  each  article. 
The  votes  would  not  be  given  or  returned  in  an  intelligent  form. 
He  said  they  were  about  to  give  the  power  of  deciding  on  the  re- 
turns to  an  irresponsible  body  ;  and  if  the  mode  of  giving  the  votes 
was  not  made  so  plain  that  he  who  runs  may  read,  they  were  giv- 
ing the  whole  power  over  the  constitution  to  this  committee. 

Mr.  Shepley  of  Fitchburg  moved  to  strike  out,  "  or  any  other 
words  that  may  signify  his  approbation  or  disapprobation."'  Persons 
voting  might  use  such  words  that  it  would  be  very  difficult  to  know 
what  their  opinions  may  be. 

Mr.  Jackson  said  the  object  in  inserting  the  clause  was  that  the 
individual  who  voted,  or  the  selectmen  who  certified  the  votes, 
might  not  be  tied  down  to  a  particular  expression.  If  they  should 
happen  to  say  yea  or  nay,  or  use  any  other  words  which  were  of 
equivalent  meaning,  there  was  no  reason  why  they  should  not  be 
received. 

Mr.  Shepley  modified  his  motion  so  as  to  insert  in  the  place  of 
the  words  proposed  to  be  struck  out,  the  following,  "  or  any  other 
words  of  the  same  import." 

The  amendment  was  agreed  to. 

Mr.  Webster  thought  there  might  be  a  further  provision  which 
would  be  of  use,  especially  in  small  towns.  If  power  were  given 
to  take  the  sense  of  the  inhabitants  by  hand-vote,  or  by  dividing  the 
House,  it  would  enable  them  to  act  upon  the  amendments  with 
greater  facility,  and  more  intelligently.  He  therefore  moved  to 
amend  the  resolution  by  inserting  a  proviso  that  any  town  may 
agree  to  take  the  number  of  votes,  &c,  &c,  against  any  or  all  the 
articles  by  a  hand-vote,  dividing  the  meeting,  or  by  yeas  and  nays 
if  they  shall  see  fit. 

After  some  debate,  in  which  Mr.  Webster  briefly  supported  the 
amendment,  and  Messrs.  Martin,  Q,uincy,  Fisher,  Lincoln,  Law- 
rence, Dana,  and  Pickman  opposed  it,  the  motion  was  negatived. 

Mr.  Abbot  moved  to  amend  the  resolution  which  directs  that  an 
attested  copy  of  the  articles  of  amendment  shall  be  sent  to  the 
selectmen  of  every  town  and  district,  by  inserting  after  "  selectmen," 
the  words,  "  and  to  the  town  or  district  clerk,  or  to  the  delegate  or 
delegates." 

Mr.  Nichols  said 'there  were  two  objections  to  the  motion;  the 
first  was  that  it  was  an  unnecessary  expense,  and  the  other  that  it 
would  give  an  undue  influence  to  the  persons  receiving  them. 

The  amendment  was  agreed  to. 

Mr.  Ellis,  from  the  committee  on  the  pay  roll,  reported  the  roll 
with  an  additional  day's  attendance,  amounting  to  808  dollars,  and 
making  in  all,  including  travel,  the  sum  of  56,732  dollars.  The 
roll  was  accepted,  and  an  order  passed,  to  request  the  governor  and 


602  MASSACHUSETTS     CONVENTION. 

council  to  issue  a  warrant  for  the  payment  from  the  treasury  of  the 
sums  found  on  the  roll. 

The  discussion  was  resumed  on  the  resolution  directing  the  mode 
of  taking  the  sense  of  the  people  on  the  articles  of  amendment. 

Mr.  Sullivan  of  Boston  moved  to  amend  by  striking  out  all  that 
part  which  relates  to  voting  by  ballot,  and  inserting  a  provision  that 
the  vote  may  be  taken  on  each  article  by  hand  or  by  dividing  the 
house.  Mr.  S.  said  he  thought  the  easiest  and  most  intelligible 
mode  of  proceeding  in  the  town  meetings  would  be,  when  the  in- 
habitants were  assembled,  to  read  and  discuss  the  articles  separately, 
and  when  each  had  been  discussed  the  inhabitants  would  be  called 
on  to  express  their  opinion  by  a  vote  on  each  article. 

Mr.  Dana  hoped  the  amendment  would  not  prevail,  but  that  the 
voting  would  be  required  to  be  by  ballot,  and  that  forms  of  returns 
would  be  sent  out  to  the  selectmen  of  the  several  towns. 

Mr.  S.  A.  Wells  said  it  would  be  utterly  impracticable  in  the 
town  of  Boston  to  proceed  by  a  hand-vote,  or  by  dividing.  The 
voters  could  not  all  meet  in  any  hall,  and  the  number  of  votes  for 
or  against  the  articles  could  not  be  ascertained. 

Mr.  Apthorp  said  that  by  one  of  the  resolutions  it  was  required 
that  the  votes  should  be  all  given  in,  on  one  day.  If  all  the  arti- 
cles were  to  be  discussed  and  balloted  on  separately  and  the  votes 
counted  on  each,  it  could  not  be  all  done  in  one  day. 

Mr.  Sturgis  said  there  was  nothing  to  confine  the  meetings  to 
one  day ;  they  might  adjourn  if  they  chose. 

Mr.  Austin  said  the  difficulty  arose  from  endeavoring  to  force  a 
conformity  where  it  was  impracticable.  In  this  town  it  would  be 
impossible  to  poll  the  house  on  the  several  questions.  But  in  small 
towns  that  would  be  the  most  convenient  mode.  He  moved  the 
resolution  should  be  so  amended  that  the  votes  may  be  given  by 
ballot  or  otherwise  as  the  selectmen  may  direct. 

Mr.  Sullivan  modified  his  amendment  in  such  manner  as  to  au- 
thorize the  vote  to  be  taken  by  ballot  in  cases  where  the  selectmen 
shall  so  direct. 

Mr.  Freeman  of  Sandwich  thought  it  ought  to  be  left  to  the 
people  in  their  primary  assemblies  to  determine  in  what  manner 
they  would  give  their  vote. 

Mr.  Prince  of  Boston  moved  to  recommit  the  subject  to  the  same 
committee. 

Mr.  Varnum  was  in  favor  of  the  amendment.  He  said  if  the 
voters  were  to  be  influenced  by  any  discussion  on  the  articles,  it 
would  not  be  practicable  to  write  their  votes,  after  listening  to  a  de- 
bate. They  would  not  be  furnished  with  pen  and  ink  to  write 
their  votes,  or  fill  up  blanks  if  they  were  furnished  with  them. 
They  would  be  compelled  to  furnish  their  votes  beforehand,  or  to 
put  in  such  as  should  be  handed  round  to  them. 

Mr.  Stowell  was  in  favor  of  the  recommitment.  They  had  had 
a  long  discussion,  but  had  come  no  nearer  to  an  agreement.     They 


MASSACHUSETTS     CONVENTION.  603 

had  been  engaged  in  a  great  work,  not,  to  be  sure,  building  a  tower 
of  Babel,  but  it  was  likely  to  lead  to  a  confusion  of  languages. 

Mr.  Bond  was  in  favor  of  recommitment,  and  proposed  a  modi- 
fication which  he  thought  would  meet  the  objection. 

Mr.  Martin  was  opposed  to  recommitment.  He  said  the  people 
in  the  country  understood  pretty  well  their  proceedings,  and  were 
now  examining  them.  They  were  now  discussing  and  making  up 
their  minds,  and  they  would  not  need  any  discussion  in  town  meet- 
ing. 

The  recommitment  was  agreed  to. 

The  resolution  directing  that  the  returns  shall  be  examined  and 
certified  by  a  committee  of  the  Convention,  was  taken  up  for  the 
purpose  of  determining  the  number  of  the  committee  and  the  mode 
of  appointment. 

It  was  moved  that  the  number  should  be  equal  to  the  number  of 
senators.     Negatived. 

Mr.  Lawrence  moved  that  the  committee  consist  of  two  persons 
from  each  congressional  district,  together  with  the  President  of  the 
Convention.     Agreed  to. 

On  motion  of  Mr.  Story,  it  was  ordered  that  the  committee  be 
appointed  in  the  usual  manner  by  nomination  from  the  chair. 

Mr.  Story,  from  the  select  committee  to  whom  was  referred  the 
resolution  relative  to  the  taxing  the  estate  of  non-residents,  for  the 
support  of  public  worship,  reported  the  resolution  amended  as  fol- 
lows : 

Resolved,  That  the  constitution  be  so  amended,  as  to  contain  a  provision  that  all 
taxes  assessed  for  the  support  of  public  worship  upon  the  estate  of  any  non-resident 
proprietor  or  proprietors,  shall  be  applied  towards  the  support  of  public  worship  in 
the  town,  precinct,  or  parish,  where  such  estate  lies,  unless  such  proprietor  or  propri- 
etors shall  be  resident  within  the  Commonwealth,  and  shall  be  of  a  different  sect  or 
denomination  of  Christians  from  that  of  the  town,  precinct,  or  parish,  by  whom  such 
taxes  are  assessed. 

Mr.  S.  said  that  the  object  of  the  resolution,  as  reported,  was  to 
reserve  to  persons  of  different  denominations  the  same  rights  which 
they  now  have  under  the  present  constitution  and  laws,  and  to  pre- 
serve to  parishes  the  same  right  of  taxing  the  estates  of  non-resi- 
dents which  they  now  have. 

The  resolution  as  amended  passed  to  a  second  reading. 

It  was  ordered  that  the  second  reading  of  the  resolution  be  now 
had,  and  it  was  read  a  second  time  and  passed  by  a  large  ma- 
jority. 

Mr.  Webster  said  that  the  rules  of  the  House  provided  for  the 
mode  of  proceeding,  on  the  amendments  proposed,  until  they  came 
to  the  last  stage,  but  for  the  form  of  passing  the  final  act,  no  pro- 
vision had  been  made.     He  therefore  moved  the  following  order: 

Ordered,  That  the  final  question  on  the  passing  of  the  proposed  amendments  to 
the  constitution,  shall  be  taken  in  this  form  :  "  Shall  this  article  of  amendment  be 
proposed  to  the  people  of  this  Commonwealth  for  their  ratification  and  adoption  '.-"'  And 
on  this  question  the  yeas  and  nays  may  be  called  as  usual. 

Mr.  Lawrence  expressed  doubts  of  the  propriety  of  taking  the 
question  in  this  form.     He  had  considered  it  settled  that  when  the 


604  MASSACHUSETTS    CONVENTION. 

amendments  had  had  two  readings  and  passed,  they  should  go  to 
the  people  in  some  form  or  other,  and  all  questions  which  should 
arise  would  be  only  to  the  form. 

Mr.  Martin  opposed  the  motion.  All  the  resolutions  adopted 
had  been  considered  as  finally  settled,  and  with  this  impression 
many  of  the  members  had  gone  home.  But  this  resolution  was 
throwing  it  all  in  the  wind. 

Mr.  Webster  said  that  everything  that  was  done  by  the  Conven- 
tion, ought  to  be  done  by  some  final  act.  They  ought  not  to  leave 
it  to  a  committee,  but  must  see  the  final  form  of  it.  It  never  oc- 
curred to  him,  that  notwithstanding  the  forms  the  resolutions  had 
gone  through,  they  were  not  to  pass  a  final  vote  on  each  article  of 
amendment.  They  were  like  resolutions  settling  the  principles  for 
an  act.  They  had  read  the  resolutions,  considered  them  with  due 
deliberation — passed  them  in  the  form  prescribed  by  the  rules  and 
orders,  and  sent  them  to  a  committee  to  be  reduced  to  form.  This 
was  not  to  be  entirely  trusted  to  the  committee.  In  a  majority  of 
cases  the  question  will  be  merely  formal,  but  on  some  it  may  be 
necessary  that  it  shall  be  taken  by  yeas  and  nays.  There  may  be 
a  difference  of  opinion  respecting  the  combination  of  articles.  As 
to  throwing  all  in  the  wind, — it  was  not  so — they  had  never  yet 
been  out  of  the  wind. 

Mr.  Q,uincy  said  there  ought  to  be  a  vote  in  Convention,  on  the 
same  questions  which  are  submitted  to  the  people ;  and  the  articles 
ought  to  go  to  the  people  with  the  majorities  given  here  in  favor 
of  each. 

The  order  passed. 

It  was  ordered  that  all  committees  have  leave  to  sit  during  the 
session  of  the  House. 

Mr.  Sullivan  of  Boston  from  the  committee  appointed  to  draft 
an  address  to  the  people  of  the  Commonwealth,  reported  an  address, 
which  was  read.* 

Mr.  Draper  of  Spencer,  from  the  committee  on  accounts,  reported 
the  accounts  allowed  for  incidental  expenses,  and  the  allowance  for 
the  pay  of  the  officers  of  the  Convention,  amounting  to  $3159  60, 
with  a  resolve  requesting  the  governor  to  issue  his  warrant  for  the 
payment  of  the  same  from  the  treasury  of  the  Commonwealth, 
which  was  read,  and  passed. 

It  was  ordered  that  when  the  House  adjourn,  they  adjourn  to 
half-past  3  o'clock  this  afternoon. 

Mr.  Jackson,  from  the  committee  to  whom  the  resolution  direct- 
ing the  mode  of  taking  the  votes  of  the  people  on  the  amendments, 
had  been  recommitted,  reported  the  resolution,  with  certain  altera- 
tions, for  rendering  it  more  intelligible,  which  were  agreed  to. 

He  reported  also  the  following  amendment,  which,  although  a 
majority  of  the  committee  thought  it  inexpedient  to  make  any 
further  change,  the  Convention  might  be  disposed  to  adopt : 

*  [This  address  will  be  found  next  after  ihe  amendments  adopted.     See  page  622.] 


MASSACHUSETTS    CONVENTION.  605 

"  Provided,  That  in  every  town  containing  not  more  than  thousand  inhabi- 

tants, the  votes  may  be  given,  on  each  article,  by  hand-vote,  or  otherwise,  as  the  se- 
lectmen of  the  respective  towns  may  order  and  direct  in  the  warrant  for  calling  such 
meeting." 

Mr.  Webster  moved  that  this  proviso  be  adopted  as  an  amend- 
ment to  the  resolution.  He  thought  it  would  be  much  more  suited 
to  the  habits  of  doing  business  in  town  meetings,  that  the  several 
articles  should  be  read  separately,  discussed,  and  voted  upon,  article 
by  article. 

Mr.  CIuincy  thought  the  amendment  unnecessary.  The  voters 
would  generally  come  with  their  ballots  prepared. 

Mr.  Varnum  spoke  in  favor  of  the  amendment. 

Mr.  Saltonstall  said  he  seldom  differed  from  the  honorable 
mover  of  the  amendment,  but  he  hoped  the  motion  would  not  pre- 
vail. There  ought  to  be  a  uniformity  in  the  mode  of  voting,  and 
he  saw  no  reason  against  voting  by  ballot  in  small  places,  that  did 
not  apply  with  equal  force  to  large  towns.  The  opinion  of  the 
people  should  be  taken  by  ballot  only,  throughout  the  Common- 
wealth. They  are  not  to  vote  until  they  will  have  had  an  opportu- 
nity of  seeing  and  examining  the  amendments  proposed, — they  will 
be  printed  and  scattered  everywhere  in  papers  and  pamphlets,  and 
will  become  the  subjects  of  conversation.  The  journal  of  our  pro- 
ceedings has  been  and  will  be  circulated  extensively,  and  we  have 
voted  to  send  it  to  every  town,  and  people  will  act  more  uifder- 
standingly  and  correctly  to  prepare  their  own  votes  before  they  go 
to  meeting,  than  to  raise  their  hands  after  a  warm  discussion,  or  a 
popular  harangue.  Mr.  S.  thought  there  would  not  be  much  dis- 
cussion at  the  meetings — it  cannot  be  necessary,  and  if  it  takes 
place,  what  is  to  prevent  the  meetings  in  some  of  the  large  towns 
from  continuing  as  long  as  this  Convention  has  ?  People  will  have 
made  up  their  opinions  before  the  second  Monday  of  April.  Voting 
by  ballot,  Mr.  S.  thought  the  only  way  to  secure  the  free,  uninflu- 
enced voice  of  the  people.  Many  would  fear  to  lift  their  hands  dif- 
ferently from  those  on  whom  they  might  be  in  some  measure 
dependent,  whatever  might  be  their  own  feelings  and  opinions. 
The  voting  should  be  perfectly  free.  And  besides,  balloting  is 
most  suited  to  the  dignity  of  the  occasion — that  is  the  mode  of 
voting  in  all  important  elections.  Should  there  be  ever  so  much 
debating,  people  may  prepare  their  own  votes — the  theory  of  our 
government  at  any  rate  is,  that  all  can  do  this.  They  can  nil  the 
blanks  with  "yes"  or  "no."  There  is  no  connection  between  the 
mode  of  voting,  and  debating  the  amendments.  There  is  danger 
also,  that  voting  by  hand- vote  may  occasion  clamor  and  excite- 
ment, contention  and  animosities  among  those  who  are  openly  ar- 
rayed against  each  other. 

Mr.  Webster  said  he  differed  from  the  gentleman  from  Salem. 
He  said  there  were  intelligent  men  in  the  towns,  capable  of  discuss- 
ing the  amendments,  and  they  ought  to  be  open  to  discussion  in  the 
town  meetings.     He  asked  what  question  had  the  Convention  been 


606  MASSACHUSETTS    CONVENTION. 

ready  to  act  upon  when  it  was  first  proposed,  without  having  it  dis- 
cussed. He  would  never  agree  to  compel  the  towns  to  vote  by  bal- 
lot on  what  ought  to  be  discussed  and  determined  intelligently. 
Because  it  was  impracticable  in  Boston,  on  account  of  the  great 
number  of  its  inhabitants,  to  vote  by  hand-vote,  was  no  reason  for 
denying  the  privilege  to  small  towns,  where  it  was  practicable. 
Gentlemen  overrated  the  facilities  of  acquiring  information  in  all 
the  different  parts  of  the  Commonwealth.  It  would  take  a  twelve- 
month to  circulate  the  pamphlet  containing  their  proceedings, 
throughout  every  town.  It  was  the  system  of  our  government  to 
have  the  people  give  their  plain  common  sense  reasons  on  all  sub- 
jects submitted  to  them,  in  the  town  meetings.  This  amendment 
was  the  only  way  to  get  the  intelligent  sense  of  the  people.  If  the 
town  meetings  ^should  be  continued  two  or  three  days,  in  discuss- 
ing the  articles  submitted  to  them,  the  time  would  be  well  laid  out. 
A  similar  occasion  might  not  occur  again  in  forty  years. 

Mr.  Paige  of  Hardwick  was  in  favor  of  the  amendment.  It 
would  be  the  most  easy  and  expeditious  mode  of  acting  on  the 
articles. 

Mr.  Walter  of  Boston  said  it  would  be  impossible  in  a  full  meet- 
ing to  count  the  hands,  so  as  to  return  the  number  with  any  cer- 
tainty. 

Mr.  Martin  hoped  the  amendment  would  not  prevail.  The  se- 
lectmen should  have  the  ballots  of  the  voters,  that  they  might  be 
able  to  make  accurate  returns.  It  would  be  impossible  to  tell  how 
many  vote  by  hand. 

Mr.  Dana  was  opposed  to  the  amendment.  He  thought  the  arti- 
cles would  be  sufficiently  understood.  Their  constituents  had 
nearly  kept  pace  with  them,  in  acquiring  a  knowledge  of  the  sub- 
jects discussed  here.  He  had  no  objection  to  their  being  discussed 
in  town  meetings.  There  could  be  no  confusion  if  a  particular 
form  of  a  return  was  prescribed.  One  mode  of  voting  was  best, 
and  he  thought  that  was  balloting.  To  give  a  choice  of  any  other, 
was  only  embarrassing  the  subject. 

Mr.  Richards  of  Plainfield  was  in  favor  of  the  amendment.  It 
would  facilitate  discussion  in  town  meetings,  and  this  would  be 
useful  in  the  small  towns,  where  it  was  more  difficult  to  get  infor- 
mation, than  where  almost  every  one  reads  the  daily  newspapers. 

Mr.  GIuincy  said  the  argument  had  been  on  the  ground  that  dis- 
cussion would  be  prevented,  if  the  voting  was  by  ballot.  This  was 
not  the  case.  Every  article  might  be  discussed  before  the  ballot 
was  given  in. 

The  amendment  was  agreed  to — 165  to  89. 

A  motion  to  fill  the  blank  with  "one  thousand,"  was  negatived; 
also  a  motion  to  fill  it  with  "  three  thousand."  "  Four  thousand  " 
was  named,  and  carried — 96  to  91. 

Adjourned. 

Afternoon  Session. 

The  House  met  according  to  adjournment.  Leave  of  absence 
was  granted  to  Mr.  Gates  of  Montague. 


MASSACHUSETTS     CONVENTION.  607 

Mr.  Apthorp  made  a  motion  to  amend  the  resolution  read  in  the 
forenoon,  for  regulating  the  proceedings  at  the  town  meetings  to  be 
called  for  the  purpose  of  acting  upon  the  amendments  to  the  consti- 
tution, by  inserting  a  provision  that  these  meetings  may  be  contin- 
ued by  adjournment  from  day  to  day,  not  exceeding  three  days  in 
the  whole.  Mr.  A.  said  his  object  was  to  remove  any  doubt  with 
respect  to  the  power  of  the  towns  to  adjourn  their  meetings,  and 
also  to  restrict  this  power  so  as  to  prevent  adjournments  for  too 
long  a  time,  lest  the  inhabitants  of  one  town  should  be  influenced 
by  the  votes  given  in  another. 

After  a  slight  debate,  in  which  it  was  answered  that  the  towns 
generally  knew  they  had  the  power  of  adjourning  their  meetings, 
and  that  such  a  restriction  would  be  unnecessary  and  inconvenient, 
the  motion  was  negatived. 

Mr.  Paige  of  Hardwick  moved  to  reconsider  the  vote  for  filling 
the  blank  with  four  thousand,  in  the  following  amendment,  adopted 
in  the  forenoon,  to  the  same  resolution,  viz.,  "  Provided  that  in  every 
town  containing  not  more  than  thousand   inhabitants,  the 

votes  may  be  given  on  each  article,  by  hand-vote,  or  otherwise,  as 
the  selectmen  of  the  respective  towns  may  order  and  direct  in  the 
warrant  for  calling  such  meeting." 

The  motion  was  agreed  to — 123  to  55. 

The  question  then  being  for  filling  the  blank, 

Mr.  Bond  moved  a  reconsideration  of  the  vote  adopting  the 
amendment ;  upon  which  some  debate  ensued  on  a  point  of  order, 
whether  the  motion  for  reconsidering  the  vote  by  which  the  whole 
amendment  was  adopted,  was  not  previous  in  its  nature  to  the 
question  of  filling  the  blank  in  it. 

Mr.  Bond's  motion  was  determined  by  the  president  to  be  out  of 
order.      v 

The  blank  was  then  filled  with  six  thousand,  and 

Mr.  Bond  renewed  his  motion  for  reconsidering  the  amendment. 

Mr.  Blake  opposed  the  motion.  He  said  it  was  a  preposterous 
idea  that  the  people  of  this  Commonwealth  should  be  tied  down  to 
give  a  silent  vote  on  fifteen  amendments  to  the  constitution,  when 
they  are  in  the  habit  of  discussing  even  a  question  of  choosing  a 
hog-reeve.  Voting  by  ballot  would  have  a  tendency  to  interfere 
with  that  deliberate  discussion  which  these  amendments  were  enti- 
tled to.  They  hardly  had  a  right  to  impose  upon  the  towns  the 
necessity  of  voting  upon  the  amendments,  without  discussion. 
From  necessity  the  large  towns  would  be  obliged  to  vote  by  ballot, 
because  of  the  impossibility  of  ascertaining  the  number  of  votes,  if 
they  should  attempt  the  other  mode  ;  but  if  they  could  vote  in 
wards,  the  same  reasons  would  apply  to  them  as  to  the  smaller 
towns. 

Mr.  Fay  of  Cambridge  said  he  did  not  understand  that  voting  by 
ballot  would  preclude  discussion.  The  articles  of  amendment  might 
be  discussed,  one  by  one  in  succession,  and  each  voter  might  have 
his  ballot  with  him.  and  when  the  discussion  on  anv  article  was 


608 


MASSACHUSETTS    CONVENTION. 


finished,  he  might  put  his  yea  or  his  nay  against  it,  uninfluenced 
by  those  about  him  ;  and  after  the  discussion  of  all  the  articles,  put 
his  ballot  into  the  box.  He  said  he  did  not  know  that  he  should 
object  to  its  being  left  to  the  town,  instead  of  the  selectmen,  to  de- 
termine the  question  whether  the  votes  shall  be  given  by  hand-vote 
or  by  ballot.  The  selectmen,  by  the  amendment  under  debate, 
would  have  the  power,  in  a  large  number  of  our  towns,  to  deter- 
mine contrary  to  the  general  wishes  of  the  inhabitants. 

The  question  was  taken  on  the  motion  to  reconsider  and  lost. 

The  President  then  appointed  the  committee  which  is  to  meet 
on  the  fourth  Wednesday  of  May,  to  examine  the  returns  of  the  votes 
of  the  people  upon  the  several  articles  of  amendment  to  the  consti- 
tution. This  committee  was  to  consist  of  two  delegates  from  each 
Congressional  district.  The  President  named  Mr.  Varnum  as  a  del- 
egate from  the  Middlesex  district ;  but  Mr.  Varnum  said  that  Dracut 
had  been  annexed  to  Essex  North  district ;  to  the  great  displeasure 
of  the  inhabitants  of  the  town.  Mr.  Webster  therefore  moved, 
that  one  more  should  be  added  to  the  committee  ;  which  was  agreed 
to,  and  the  President  nominated  Mr.  Dana  of  Groton,  as  a  delegate 
from  Middlesex  district. 

The  following  gentlemen  compose  the  committee,  viz.  : 

The  President  of  the  Convention,  Isaac  Parker. 


For  Suffolk  District, 

John  Phillips,    . 

Boston. 

Benjamin  Russell,   . 

Boston. 

Essex  South, 

Benjamin  Pickman, 

Salem. 

William  Pearce, 

Gloucester. 

Essex  North, 

.      .     William  Bartlett,      .      . 

Newburyport 

Charles  White,   .      .      . 

Haverhill. 

Joseph  B.  Varnum,  . 

Dracut. 

Middlesex, 

Joseph  Locke, 

Billerica. 

Samuel  Dana,     . 

Groton. 

Hampshire  North, 

.     Elihu  Hoyt,  .... 

Deerfield. 

Varney  Pierce,   .      .      . 

New  Salem. 

Hampshire  South, 

Samuel  Porter,   . 

Hadley. 

Enos  Foote,  .... 

Southwick. 

Plymouth, 

.     Charles  Turner,  . 

Scituate. 

Daniel  Howard, 

Bridgewater. 

Bristol.     .      .      . 

Easton. 

Jonas  Godfrey,   . 

Taunton. 

Barnstable,     . 

.     Josiah  Hussey,    . 

Nantucket. 

Russell  Freeman,     . 

Sandwich. 

Worcester  South, 

.     Jonas  Sibley, 

Sutton. 

Timothy  Paige,. 

Hardwick. 

Worcester  North, 

Thomas  H.  Blood,    . 

Sterling. 

Bezaleel  Lawrence, 

Leominster. 

Norfolk,    .      .      . 

Quincy. 

John  Endicott,    . 

Dedham. 

Berkshire, 

.     Nathan  Willis,   .      .      . 

Pittsfield. 

George  Conant,  . 

Becket. 

Mr.  Jackson  suggested  that  it  would  be  proper  for  the  committee 
for  reducing  the  amendments  to  form,  to  have  a  little  time  to  go 
over  the  journals,  and  to  have  the  secretary  with  them ;  that  they 
might  be  satisfied  that  nothing  had  been  omitted  in  their  report. 
As  he  was  not  aware  of  anything  that  then  required  the  attention 


MASSACHUSETTS    CONVENTION.  609 

of  the  House,  he  was  desirous  that  it  should  adjourn  for  a  short 
time,  and  he  hoped  that  in  an  hour,  the  committee  would  be  able 
to  make  their  final  report. 

Mr.  Varnum  inquired  respecting  the  article  which  relates  to  the 
political  year. 

Mr.  Jackson  said  the  committee  had  agreed  to  report  as  an 
amendment  to  that  article,  that  the  words  "  from  and  after  the  first 
Wednesday  in  January"  should  be  struck  out,  and  "on  the  fourth 
day  of  July  "  inserted,  and  a  blank  be  filled  with  "  one" — so  that 
the  article,  if  ratified  by  the  people,  should  go  into  operation  on 
the  4th  of  July,  1821. 

This  amendment  was  adopted,  and  the  House  adjourned  at  a 
quarter  before  5  o'clock,  for  one  hour. 


The  House  met  again  according  to  adjournment. 

A  slight  addition  which  had  been  made  to  the  address,  which  is 
to  go  out  to  the  people  with  the  amendments,  having  been  read,  on 
motion  of  Mr.  Webster  the  address  was  accepted. 

On  motion  of  Mr.  Story,  it  was  ordered  that  fifteen  hundred 
copies  of  the  address  be  printed,  and  be  distributed  among  the  sev- 
eral towns,  in  proportion  to  their  right  of  representation. 

Mr.  Jackson  reported  that  the  committee  for  reducing  the  amend- 
ments to  form,  had  made  fourteen  articles  of  the  amendments  which 
had  been  adopted  by  the  Convention,  to  be  proposed  to  the  people. 
The  committee  had  also  agreed  to  report  an  amendment  to  the  res- 
olution respecting  the  town  meetings ;  which  was,  to  insert  that  the 
selectmen  shall  preside  in  such  town  meetings. 

The  amendment  was  agreed  to. 

The  five  resolutions  hereafter  given,  (vid.  p.  612,)  relating  to  the 
manner  in  which  the  articles  of  amendment  are  to  be  acted  upon  by 
the  people,  being  read, 

Mr.  Varnum  said  that  the  printed  copies  of  these  resolutions,  with 
the  articles  of  amendment  subjoined,  which  are  to  be  sent  to  the 
selectmen,  &c.  of  every  town,  ought  to  be  signed  by  the  president 
of  the  Convention. 

Mr.  Jackson  replied,  that  by  a  resolution  formerly  reported  on  the 
mode  of  submitting  amendments  to  the  people,  it  was  proposed  that 
the  president  should  sign  the  copy  which  is  to  be  engrossed  on  parch- 
ment, and  deposited  in  the  office  of  the  secretary  of  the  Common- 
wealth, and  the  copy  which  is  to  be  sent  to  the  governor  and  coun- 
cil ;  but  to  require  him  to  sign  all  the  printed  copies  which  are  to 
be  sent  to  the  several  towns  would  be  imposing  a  laborious  duty. 
It  would  be  sufficient  to  assure  the  towns  that  they  had  correct 
copies,  if  they  were  attested  by  the  secretary,  as  provided  in  the 
fifth  resolution. 

Mr.  Varnum  thought  each  copy  ought  to  be  signed  by  the  pres- 
ident. 

77 


610  MASSACHUSETTS    CONVENTION. 

Mr.  Dana  said  it  would  be  a  sufficient  attestation  if  the  copies 
were  signed  by  the  secretary ;  but  it  ought  also  to  be  required  of 
the  secretary  to  transmit  them  to  the  several  towns.  For  this  pur- 
pose he  moved  to  amend  the  fifth  resolution  by  inserting  after 
"transmitted,"  the  words  "by  him."  The  amendment  was  agreed 
to  and  the  resolutions  were  adopted. 

The  fourteen  articles  of  amendment  were  then  read  twice  ;  first, 
together,  and  afterwards,  article  by  article  ;  and  upon  the  second 
reading  a  few  amendments  were  adopted. 

Ordered,  That  the  secretary  cause  a  competent  number  of  copies  of  the  said  reso- 
lutions, and  of  the  articles  of  amendment  to  be  printed,  and  that  the  same.be  attested 
by  him,  and  transmitted  to  the  several  towns  in  this  Commonwealth,  as  directed  in 
one  of  said  resolutions. 

Ordered,  That  a  copy  of  all  the  amendments  made  and  proposed  by  this  Conven- 
tion, shall  be  attested  by  the  president  and  by  the  secretary  thereof,  and  transmitted 
to  his  excellency  the  governor,  and  another  copy  shall  be  attested  as  aforesaid,  and 
engrossed  on  parchment,  and  shall,  together  with  the  journal  of  the  proceedings  of 
this  Convention,  and  the  files  thereof,  be  deposited  in  the  office  of  the  secretary  of 
the  Commonwealth. 

On  the  reading  of  the  second  article,  Mr.  Foster  of  Littleton 
moved  that  the  words  "  of  our  Lord  "  be  added  in  all  the  amend- 
ments after  the  word  "year"  whenever  it  occurs  as  a  date.  This 
was  agreed  to. 

On  the  reading  of  the  fourth  article  respecting  city  corporations, 
Mr.  S.  A.  Wells  moved  to  insert  "  majority  of,"  and  Mr.  J.  Phil- 
lips moved  to  insert  "present  and  voting  thereon,"  so  as  to  have  it 
read  that  no  city  government  should  be  constituted  in  any  town 
unless  upon  the  application  of  a  "majority  of"  the  inhabitants  of 
such  town  "present  and  voting  thereon."  These  amendments 
were  agreed  to. 

In  that  part  of  the  fifth  article  which  relates  to  increasing  the 
number  which  shall  entitle  a  town  to  choose  a  representative,  the 
year  1832  was  substituted  for  1831,  upon  the  suggestion  of  Mr. 
Jackson,  that  the  census,  to  be  taken  every  tenth  "year  by  the  United 
States,  might  not  be  officially  made  known  so  early  as  1831,  and 
every  tenth  succeeding  year. 

In  the  tenth  article,  on  motion  of  Mr.  Jackson,  the  words  "  with 
this  further  provision,  to  wit,"  were  substituted  for  the  word  "  ex- 
cepting." 

Mr.  Parker  of  Charlestown  moved  to  amend  the  same  article  by 
adding  a  proviso,  that  nothing  contained  in  the  article  should  be 
construed  to  deprive  the  Legislature  of  any  rights  which  it  now 
possesses  in  regard  to  Harvard  College. 

This  motion  was  determined  to  be  out  of  order,  as  none  but 
formal  amendments  could  be  received  at  this  stage  of  the  proceed- 
ings. 

The  question  whether  this  article  should  be  proposed  to  the  people 
for  their  ratification,  was  determined  in  the  affirmative — 197  to  61. 

On  the  reading  of  the  amendments,  article  by  article,  the  follow- 
ing question  was  separately  put  by  the  president  according  to  order  : 
"  Shall  this  article  of  amendment  be  proposed  to  the  people  of  this 


MASSACHUSETTS    CONVENTION.  611 

Commonwealth  for  their  ratification  and  adoption  ? "  The  Con- 
vention adopted  each  of  the  articles  by  an  affirmative  vote  on  said 
question ;  and  all  of  them  without  a  division  except  the  one  just 
mentioned. 

After  the  House  had  gone  through  with  reading  and  voting  upon 
the  several  articles,  the  President  observed  that  it  would  be  suitable, 
at  the  close  of  their  session,  to  invoke  a  divine  blessing  upon  their 
labors  and  upon  the  members  of  the  Convention  on  their  return  to 
their  homes  ;  to  which  the  House  assented,  and  the  President  re- 
quested the  Rev.  Mr.  Foster  of  Littleton  to  offer  up  prayers. 

After  prayers,  at  about  eight  o'clock,  on  motion  of  Mr.  Varnum, 
the  Convention  adjourned  without  day. 


612  MASSACHUSETTS    CONVENTION. 


ARTICLES    OF   AMENDMENT. 

The  following  are  the  articles  of  amendment  as  finally  agreed  to, 
in  the  form  in  which  they  are  to  be  submitted  to  the  people  for 
ratification  and  adoption  ;  together  with  the  resolutions  prescribing 
the  manner  in  which  they  should  be  acted  upon : 

COMMONWEALTH  OF  MASSACHUSETTS. 
In  the  year  of  our  Lord  one  thousand  eight  hundred  and  twenty. 

In  the  Convention  of  the  Delegates  of  the  People,  assembled  at 
Boston  on  the  third  Wednesday  of  November,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  twenty,  for  the  purpose  of 
Revising  and  Amending  the  Constitution  of  this  Commonwealth, 
pursuant  to  an  act  of  the  General  Court,  passed  on  the  sixteenth 
day  of  June,  in  the  year  aforesaid  : 

Resolved,  That  the  following  Articles  of  Amendment  of  the 
Constitution  of  the  Commonwealth,  which  have  been  made  and 
proposed  by  this  Convention,  and  which  are  numbered  progressively 
from  one  to  fourteen  inclusive,  shall  be  submitted  to  the  people  for 
their  ratification  and  adoption  ;  and  if  the  said  articles,  or  any  one 
or  more  of  them,  shall  be  ratified  by  the  people  in  the  manner  here- 
inafter prescribed,  the  articles  so  ratified  shall  become  a  part  of  the 
constitution  of  this  Commonwealth. 

Resolved,  That  the  people  shall  be  assembled  for  the  purpose 
aforesaid,  in  their  respective  towns  and  districts,  in  meetings  to  be 
legally  warned,  and  held  on  the  second  Monday  of  April  next :  at 
which  meetings,  all  the  inhabitants  qualified  to  vote  for  senators  or 
representatives  in  the  General  Court,  may  give  in  their  votes  by 
ballot,  for  or  against  each  of  the  said  articles  of  amendment ;  pro- 
vided, that  in  every  town,  containing  not  more  than  six  thousand 
inhabitants,  the  votes  may  be  given  on  each  article  by  hand-vote, 
or  otherwise,  as  the  selectmen  of  the  respective  towns  may  order 
and  direct  in  the  warrant  for  calling  such  meeting.  And  the  select- 
men of  the  respective  towns  and  districts  shall  preside  at  such  meet- 
ings and  shall  in  open  meeting  receive,  sort,  count  and  declare  the 
votes  of  the  inhabitants  for  and  against  each  of  the  said  articles  ; 
and  the  clerks  of  the  said  towns  and  districts  shall  record  the  said 
votes,  and  true  returns  thereof  shall  be  made  out  under  the  hands 
of  the  selectmen,  or  the  major  part  of  them,  and  of  the  clerk  ;  and 
the  selectmen  shall  inclose,  seal  and  deliver  the  said  returns  to  the 
sheriff  of  the  county,  within  fifteen  days  after  the  said  meetings,  to 
be  by  him  transmitted  to  the  office  of  the  secretary  of  the  Common- 
wealth, on  or  before  the  fourth  Wednesday  of  May  next ;  or  the 
selectmen  shall  themselves  transmit  the  same  to  the  said  office  on 
or  before  the  day  last  mentioned. 

Resolved,  That  a  committee  of  this  Convention  shall  meet  at  the 


MASSACHUSETTS    CONVENTION.  613 

State  House,  in  Boston,  on  the  said  fourth  Wednesday  of  May,  and 
shall  open  and  examine  the  votes  then  returned  as  aforesaid,  and 
shall,  as  soon  as  may  be,  certify  to  his  excellency  the  governor,  and 
also  to  the  General  Court,  the  number  of  votes  so  returned  for  and 
against  each  of  the  said  articles  of  amendment. 

Resolved,  That  each  of  the  said  articles  shall  be  considered  as  a 
distinct  amendment,  to  be  adopted  in  the  whole,  or  rejected  in  the 
whole,  as  the  people  shall  think  proper.  And  in  case  the  votes  are 
given  by  ballot,  every  person  qualified  to  vote  as  aforesaid,  may 
express  his  opinion  on  each  article  as  designated  by  its  appropriate 
number,  without  specifying  in  his  ballot  the  contents  of  the  article, 
and  by  annexing  to  each  number  the  word  yes,  or  no,  or  any  other 
words  of  the  same  import ;  but  the  whole  shall  be  written  or  printed, 
on  one  ballot,  in  substance  as  follows,  to  wit  : 

Amendments. 

Article  first,       .  Yes  or  No. 

Article  second, Yes  or  No. 

&c.  to 
Article  fourteen, Yes  or  No. 

And  every  article  that  shall  appear  to  be  approved  by  a  majority 
of  the  persons  voting  thereon,  according  to  the  votes  returned  and 
certified  as  aforesaid,  shall  be  deemed  and  taken  to  be  ratified  and 
adopted  by  the  people  ;  and  all  the  amendments,  so  ratified  and 
adopted,  shall  be  promulgated  and  made  known  to  the  people,  in 
such  manner  as  the  General  Court  shall  order. 

Resolved,  That  a  printed  copy  of  these  resolutions,  with  the 
Articles  of  Amendment  subjoined,  shall  be  attested  by  the  secre- 
tary of  this  Convention,  and  transmitted  by  him,  as  soon  as  may  be, 
to  the  selectmen,  clerk  and  delegate  or  delegates  of  every  town  and 
district  in  the  Commonwealth. 

ARTICLE    THE    FIRST. 

The  power  and  the  duty  of  the  Legislature  to  require  provision  to 
be  made  for  the  institution  of  the  public  worship  of  God,  and  for  the 
support  and  maintenance  of  public  teachers,  shall  not  be  confined  to 
Protestant  teachers,  but  shall  extend  and  be  applied  equally  to  all 
public  Christian  teachers  of  piety,  religion  and  morality ;  and  shall 
also  extend  and  be  applied  equally  to  all  religious  societies,  whether 
incorporated  or  unincorporated. 

All  moneys  paid  by  the  subject  for  the  support  of  public  worship 
and  of  the  public  teachers  aforesaid,  shall,  if  he  require  it,  be  ap- 
plied to  the  support  of  the  public  teacher  or  teachers,  if  there  be  any, 
on  whose  instructions  he  attends,  whether  of  the  same,  or  of  a  dif- 
ferent sect  or  denomination  from  that  of  the  parish  or  religious  so- 
ciety in  which  the  said  moneys  are  raised. 

Provided,  that  all  taxes  assessed  for  the  support  of  public  worship, 
and  of  the  public  teachers  aforesaid,  upon  the  real  estate  of  any  non- 
resident proprietor  or  proprietors,  shall  be  applied  towards  the  sup- 
port of  public  worship  in  the  town,  precinct  or  parish,   by  which 


614  MASSACHUSETTS    CONVENTION. 

such  taxes  are  assessed ;  unless  such  proprietor  or  proprietors  shall 
be  resident  within  this  Commonwealth,  and  shall  be  of  a  different 
sect  or  denomination  of  Christians  from  that  of  the  town,  precinct 
or  parish  by  which  such  taxes  are  assessed. 

The  clause  in  the  third  article  of  the  declaration  of  rights,  which 
invests  the  Legislature  with  authority  to  enjoin,  on  all  the  subjects 
of  the  Commonwealth,  an  attendance  upon  the  instructions  of  pub- 
lic teachers,  shall  be  and  hereby  is  annulled. 

No  person  shall  be  subjected  to  trial  for  any  crime  or  offence  for 
which,  on  conviction  thereof,  he  may  be  exposed  to  imprisonment, 
or  to  any  ignominious  punishment,  unless  upon  presentment  or  in- 
dictment by  a  grand  jury ;  except  in  cases  which  are  or  may  be 
otherwise  expressly  provided  for  by  the  statutes  of  the  Common- 
wealth. And  every  person  charged  with  any  crime  or  offence  shall 
have  a  right  to  be  fully  heard  in  his  defence  by  himself  and  his 
counsel. 

ARTICLE    THE    SECOND. 

The  political  year  shall  begin  on  the  first  Wednesday  of  January, 
instead  of  the  last  Wednesday  of  May  ;  and  the  General  Court  shall 
assemble  every  year  on  the  said  first  Wednesday  of  January,  and 
shall  proceed  at  that  session  to  make  all  the  elections,  and  do  all 
the  other  acts,  which  are  by  the  constitution  required  to  be  made 
and  done  at  the  session  which  has  heretofore  commenced  on  the 
last  Wednesday  of  May.  And  the  General  Court  shall  be  dissolved 
on  the  day  next  preceding  the  first  Wednesday  of  January,  without 
any  proclamation,  or  other  act  of  the  governor.  But  nothing  herein 
contained  shall  prevent  the  General  Court  from  assembling  at  such 
other  times  as  they  shall  judge  necessary. 

The  governor,  lieutenant  governor,  and  counsellors,  shall  also 
hold  their  respective  offices  for  one  year  next  following  the  first 
Wednesday  of  January,  and  until  others  are  chosen  and  qualified  in 
their  stead. 

The  meetings  for  the  choice  of  governor,  lieutenant  governor,  and 
senators,  shall  be  held  on  the  second  Monday  of  November  in  every 
year,  instead  of  the  first  Monday  of  April ;  and  the  members  of  the 
house  of  representatives  shall  also  be  chosen  at  the  same  meetings  : 
but  the  meetings  may  be  adjourned,  if  necessary,  for  the  choice  of 
representatives  to  the  next  day,  and  again  to  the  day  next  succeed- 
ing, but  no  further.  Provided,  however,  that  such  towns  or  towns 
and  districts,  as  are  or  may  be  united  for  the  choice  of  a  representa- 
tive, may  hold  their  meetings  for  that  purpose  at  such  time  and  in 
such  manner  as  the  General  Court  shall  hereafter  direct. 

All  the  other  provisions  of  the  constitution,  respecting  the  elec- 
tions and  proceedings  of  the  members  of  the  General  Court,  or  of 
any  other  officers  or  persons  whatsoever,  that  have  reference  to  the 
last  Wednesday  of  May  as  the  commencement  of  the  political  year, 
shall  be  so  far  altered  as  to  have  the  like  reference  to  the  first  Wed- 
nesday of  January. 

This  article  shall  go  into  operation  on  the  fourth  day  of  July,  in 


MASSACHUSETTS    CONVENTION.  615 

the  year  of  our  Lord,  one  thousand  eight  hundred  and  twenty-one, 
and  the  governor,  lieutenant  governor,  counsellors,  senators  and 
representatives,  and  all  other  state  officers  who  are  chosen  annually, 
and  who  shall  be  chosen  for  the  year  of  our  Lord  one  thousand 
eight  hundred  and  twenty-one,  shall  hold  their  respective  offices 
until  the  first  Wednesday  of  January,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  twenty-two,  and  until  others  are  chosen 
and  qualified  in  their  stead ;  and  the  first  election  of  the  governor, 
lieutenant  governor,  senators  and  representatives,  to  be  had  in  virtue 
of  this  article,  shall  be  had  on  the  second  Monday  of  November,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  twenty-one. 

ARTICLE    THE    THIRD. 

[Article  First  of  the  Adopted  Amendments.] 

If  any  bill  or  resolve  shall  be  objected  to  and  not  approved  by  the 
governor  ;  and  if  the  General  Court  shall  adjourn  within  five  days 
after  the  same  shall  have  been  laid  before  the  governor  for  his  ap- 
probation, and  thereby  prevent  his  returning  it  with  his  objections, 
as  provided  by  the  constitution  ;  such  bill  or  resolve  shall  not  be- 
come a  law,  nor  have  force  as  such. 

ARTICLE    THE    FOURTH. 

[Article  Second  of  the  Adopted  Amendments.] 

The  General  Court  shall  have  full  power  and  authority  to  erect 
and  constitute  municipal  or  city  governments,  in  any  corporate 
town  or  towns  in  this  Commonwealth,  and  to  grant  to  the  inhabi- 
tants thereof  such  powers,  privileges  and  immunities,  not  repugnant 
to  the  constitution,  as  the  General  Court  shall  deem  necessary  or 
expedient  for  the  regulation  and  government  thereof;  and  to  pre- 
scribe the  manner  of  calling  and  holding  public  meetings  of  the  in- 
habitants, in  wards  or  otherwise,  for  the  election  of  officers  under 
the  constitution,  and  the  manner  of  returning  the  votes  given  at 
such  meetings.  Provided,  that  no  such  government  shall  be  erected 
or  constituted  in  any  town  not  containing  twelve  thousand  inhabi- 
tants :  nor  unless  it  be  with  the  consent  and  on  the  application  of  a 
majority  of  the  inhabitants  of  such  town,  present  and  voting  thereon, 
pursuant  to  a  vote  at  a  meeting  duly  warned  and  holden  for  that 
purpose.  And  provided  also,  that  all  by-laws  made  by  such  mu- 
nicipal or  city  government  shall  be  subject,  at  all  times,  to  be  annulled 
by  the  General  Court. 

ARTICLE    THE     FIFTH. 

There  shall  be  annually  elected  in  the  manner  prescribed  by  the 
constitution  thirty-six  persons  to  be  senators  instead  of  forty  persons 
as  heretofore  required  ;  and  not  less  than  nineteen  members  of  the 
senate  shall  constitute  a  quorum  for  doing  business. 

The  number  of  districts  into  which  the  Commonwealth  shall  be 
divided  for  the  purpose  of  electing  senators  shall  never  be  less  than 
ten,  and  the   senators  shall  be  so  apportioned   among  the  said  dis- 


616  MASSACHUSETTS     CONVENTION. 

tricts,  as  that  no   district  shall  elect  more  than  six ;   and  no  county- 
shall  be  divided  for  the  purpose  of  forming  such  a  district. 

The  several  counties  in  the  Commonwealth  shall  be  districts  for 
the  choice  of  senators  ;  excepting  that  the  counties  of  Hampshire, 
Franklin  and  Hampden  shall  together  form  one  district  for  the  pur- 
pose ;  and  also  that  the  counties  of  Barnstable,  Nantucket  and  Dukes 
County  shall  together  form  one  district  for  the  purpose  ;  and  the  said 
districts  shall  be  respectively  entitled  to  elect  the  following  number, 
to  wit : 

Suffolk,  -----         six. 

Middlesex,        -----         four. 

Hampshire,  Franklin  and  Hampden,      -  -         four. 

Berkshire,         -  -  -  -  -         two. 

Bristol,  _  _  _  _  _         two. 

Essex,  ___--         six. 

Worcester,        -----         five. 

Plymouth,        -----         two. 

Norfolk,  -----         three. 

Barnstable,  Nantucket  and  Dukes  County,        -         two. 
And  the  foregoing  arrangements  of  the  districts  and  apportion- 
ment of  the  senators  among  them,  shall  remain  in  force  until  altered 
by  the  General   Court,  according  to  the   provisions  of  the  consti- 
tution. 

The  members  of  the  house  of  representatives  shall  be  elected  in 
the  following  manner.  Every  corporate  town  containing  1200  in- 
habitants, may  elect  one  representative  ;  and  2400  inhabitants  shall 
be  the  mean  increasing  number  which  shall  entitle  a  town  to  an  ad- 
ditional representative. 

In  every  case  where  any  town  is  now  united  to  any  other  town, 
or  to  a  district,  for  the  purpose  of  electing  a  representative,  such 
towns  and  districts  so  united  are  and  shall  be  respectively  considered 
as  one  town,  in  all  things  respecting  the  election  of  representative, 
as  provided  for  in  this  article. 

Every  corporate  town,  containing  less  than  1200  inhabitants,  shall 
be  entitled  to  elect  one  representative,  every  other  year  only,  except- 
ing the  years  in  which  the  valuation  of  estates  within  the  Common- 
wealth shall  be  settled,  when  each  of  said  towns  shall  be  entitled  to 
send  a  representative  ;  but  the  Legislature  of  that  year  shall  never 
appoint  the  year  in  which  the  next  valuation  shall  be  taken  or 
settled. 

And  the  Legislature  at  their  first  session,  after  the  census  which 
is  now  taking  under  the  authority  of  the  United  States  shall  be 
completed,  and  after  every  subsequent  census  which  shall  be  taken 
as  aforesaid,  or  under  the  authority  of  this  Commonwealth,  shall  di- 
vide the  towns  in  each  county  where  there  are  more  than  one, 
which  according  to  the  provisions  of  this  article  shall  not  be  entitled 
to  send  a  representative  every  year  into  two  equal  classes ;  the  first 
of  which  shall  comprise  half  the  towns  in  number,  and  those 
which  contain   the    greatest    population,    and  each   town  in   this 


MASSACHUSETTS     CONVENTION.  617 

class  may  elect  a  representative  the  first  year  after  they  are  so 
classed. 

The  second  class  shall  consist  of  the  other  corporate  towns  irj  the 
county  not  entitled  to  send»a  representative  every  year,  each  of 
which  may  elect  a  representative  the  second  year  after  they  are 
classed,  and  if  there  be  an  uneven  number  of  such  towns  in  any 
county,  the  largest  number  shall  be  placed  in  the  second  class,  and 
the  towns  so  classed  may  each  thereafter  continue  to  elect  one  repre- 
sentative every  other  year,  excepting  as  aforesaid.  Provided,  that  the 
Legislature  may  place  in  different  classes  any  two  adjoining  towns 
which  may  happen  to  be  in  the  same  class,  upon  their  application 
for  that  purpose.  And  each  of  said  classed  towns  shall  be  entitled 
to  elect  a  representative  every  year,  when  such  towns  shall  have  the 
number  of  inhabitants  which  shall  entitle  other  towns  to  elect  one 
representative  according  to  the  provisions  of  this  article. 

And  if  any  two  towns  herein  directed  to  be  classed,  shall  wish  to 
be  united  and  elect  a  representative  together  every  year,  instead  of 
electing  one.  separately  every  other  year,  the  Legislature,  upon  then- 
application  for  that  purpose,  shall  so  unite  them,  and  prescribe  the 
time  and  place  of  holding  their  meetings  for  the  election  of  their 
representatives,  and  the  manner  in  which  their  choice  shall  be  certi- 
fied by  the  selectmen  of  both  or  either  of  said  towns  ;  and  such 
towns  shall  continue  so  united  until  the  inhabitants  of  one  of  them 
shall  have  increased  to  such  a  number  as  shall  entitle  it  separately 
to  send  a  representative  ;  or  until  one  of  said  towns,  by  a  vote  of  a 
major  part  of  the  legal  voters  therein,  shall  apply  to  the  Legislature 
to  separate  them,  whereupon  it  shall  be  their  duty  so  to  do,  and  to 
class  them  in  the  same  manner  as  they  then  would  and  ought  to  be 
classed  if  they  had  never  been  united. 

And  to  prevent  the  house  of  representatives  becoming  too  numer- 
ous, the  number  of  inhabitants  which  shall  entitle  a  town  to  elect 
one  representative,  and  the  mean  increasing  number  which  shall 
entitle  it  to  elect  more  than  one,  shall  be  proportionally  increased 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  thirty-two 
and  every  tenth  year  afterwards,  so  that  the  house  of  representatives 
shall  never  consist  of  more  than  two  hundred  and  seventy-five 
members,  excepting  in  those  years  in  which  the  valuation  is  settled. 
And  if  any  town  which  contains  1200  inhabitants  and  upwards  shall. 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  thirty-two, 
or  in  any  tenth  year  afterwards,  be  found  not  to  contai.j  the  number 
of  inhabitants  which,  according  to  the  provision  aforesaid,  shall  be 
requisite  to  entitle  it  to  send  a  representative  every  year,  such  town 
shall  be  classed  by  the  Legislature,  and  shall  thereafter  be  entitled 
to  send  a  representative  every  other  year  only,  until  it  shall  have  a 
competent  number  to  entitle  it  to  send  a  representative  every  year  • 
and  no  town  which  shall  be  entitled  to  send  a  representative  every 
other  year,  shall  ever  be  deprived  of  that  privilege. 

Every  town  which  shall  hereafter  be  incorporated,  shall  be  entitled 
78 


618  MASSACHUSETTS    CONVENTION. 

to  send  one  representative,  when  it  shall  contain  twenty-four  hun- 
dred inhabitants,  and  not  before. 

The  members  of  the  house  of  representatives  shall  be  paid  out  of 
the  treasury  of  the  Commonwealth  for  their  attendance  in  the  General 
Court  during  the  session  thereof. 

Not  less  than  one  hundred  members  of  the  house  of  representatives 
shall  constitute  a  quorum  for  doing  business. 

No  member  of  the  senate  or  house  of  representatives  shall  be 
arrested  on  mesne  process,  warrant  of  distress  or  execution,  during 
his  going  unto,  returning  from,  or  attendance  in  the  General  Court. 

The  council  for  advising  the  governor  in  the  executive  part  of 
government,  shall  consist  of  seven  persons,  besides  the  lieutenant 
governor,  instead  of  nine  persons  ;  and  four  of  said  council  shall 
constitute  a  quorum  for  doing  business,  instead  of  five  of  them  as 
heretofore  required. 

The  counsellors  shall  be  annually  chosen  from  among  the  people 
at  large,  excluding  members  of  the  senate  and  house  of  representa- 
tives, on  the  first  Wednesday  in  January,  by  the  joint  ballot  of  the 
senators  and  representatives  assembled  in  one  room,  who  shall,  as 
soon  as  may  be,  in  like  manner  fill  up  any  vacancies  that  may  hap- 
pen-'in  the  council,  by  death,  resignation  or  otherwise.  The  coun- 
sellors shall  have  the  same  qualifications  in  point  of  property  and 
residence  within  the  Commonwealth  as  are  required  for  senators  ; 
and  not  more  than  one  counsellor  shall  be  chosen  out  of  any  one 
senatorial  district  in  the  Commonwealth. 

In  case  any  person  who  may  be  elected  a  counsellor  shall  not 
attend  seasonably  to  take  and  subscribe  the  oaths  prescribed  by  the 
constitution,  in  the  presence  of  the  two  houses  of  the  General  Court, 
at  the  session  thereof  at  which  he  shall  be  elected,  he  may  take  and 
subscribe  the  same  before  the  governor  alone,  or  before  the  lieuten- 
ant governor  and  any  one  of  the  council,  who  shall  have  been 
previously  qualified. 

ARTICLE    THE     SIXTH. 

[Article  Third  of  the  Adopted  Amendments.] 
Every  male  citizen  of  twenty-one  years  of  age  and  upwards  (ex- 
cepting paupers  and  persons  under  guardianship)  who  shall  have 
resided  within  the  Commonwealth  one  year,  and  within  the  town 
or  district  in  which  he  may  claim  a  right  to  vote,  six  calendar 
months  next  preceding  any  election  of  governor,  lieutenant  gover- 
nor, senators  or  representatives,  and  who  shall  have  paid,  by  himself 
or  his  parent,  master  or  guardian,  any  state  or  county  tax,  which 
shall,  within  two  years  next  preceding  such  election,  have  been 
assessed  upon  him  in  any  town  or  district  of  this  Commonwealth  ; 
and  also  every  citizen  who  shall  be  by  law  exempted  from  taxation, 
and  who  shall  be  in  all  other  respects  qualified  as  above  mentioned, 
shall  have  a  right  to  vote  in  such  election  of  governor,  lieutenant 
governor,  senators  and  representatives,  and  no  other  person  shall  be 
entitled  to  vote  in  such  elections. 


MASSACHUSETTS    CONVENTION.  619 

ARTICLE    THE     SEVENTH. 

[Article  Fourth  of  the  Adopted  Amendments.] 

Notaries  public  shall  be  appointed  by  the  governor,  in  the  same 
manner  as  judicial  officers  are  appointed,  and  shall  hold  their  offices 
during  seven  years,  unless  sooner  removed  by  the  governor,  with 
the  consent  of  the  council,  upon  the  address  of  both  houses  of 
the  Legislature. 

In  case  the  office  of  secretary  or  treasurer  of  the  Commonwealth 
shall  become  vacant  from  any  cause  during  the  recess  of  the  General 
Court,  the  governor,  with  the  advice  and  consent  of  the  council, 
shall  nominate  and  appoint,  under  such  regulations  as  may  be  pre- 
scribed by  law,  a  competent  and  suitable  person  to  such  vacant  office, 
who  shall  hold  the  same  until  a  successor  shall  be  appointed  by  the 
General  Court. 

Whenever  the  exigencies  of  the  Commonwealth  shall  require  the 
appointment  of  a  commissary  general,  he  shall  be  nominated,  ap- 
pointed and  commissioned  in  such  manner  as  the  Legislature  may 
by  law  prescribe. 

All  officers  commissioned  to  command  in  the  militia  may  be  re- 
moved from  office  in  such  manner  as  the  Legislature  may  by  law 
prescribe. 

ARTICLE    THE    EIGHTH. 

[Article  Fifth  of  the  Adopted  Amendments.] 

In  the  elections  of  captains  and  subalterns  of  the  militia,  all  the 
members  of  their  respective  companies,  as  well  those  under  as  those 
above  the  age  of  twenty-one  years,  shall  have  a  right  to  vote. 

ARTICLE    THE    NINTH. 

Justices  of  the  peace  may  be  removed  from  office  like  other  judi- 
cial officers,  by  the  governor,  with  the  consent  of  the  council,  upon 
the  address  of  a  majority  of  the  members  present  of  each  house  of 
the  Legislature  ;  but  no  address  for  the  removal  of  any  judicial 
officer  shall  pass  either  house  of  the  Legislature  until  the  causes  of 
such  removal  are  first  stated  and  entered  on  the  journal  of  the 
house  in  which  it  shall  originate,  and  a  copy  thereof  served  on  the 
person  in  office,  so  that  he  may  be  admitted  to  a  hearing  in  his 
defence  before  each  of  said  houses. 

The  governor  and  the  two  branches  of  the  Legislature  respectively, 
shall  not  hereafter  be  authorized  to  propose  questions  to  justices  of 
the  supreme  judicial  court,  and  require  their  opinions  thereon. 

ARTICLE    THE    TENTH. 

The  rights  and  privileges  of  the  president  and  fellows  of  Harvard 
College,  and  the  charter  and  constitution  thereof,  and  of  the  board 
of  overseers  as  at  present  established  by  law,  are  hereby  confirmed, 
with  this  further  provision,  to  wit,  that  the  board  of  overseers,  in  the 
election  of  ministers  of  churches  to 'be  members  of  said  board,  shall 
not  hereafter  be  confined  to  ministers  of  churches  of  any  particular 
denomination  of  Christians. 


620  MASSACHUSETTS     CONVENTION. 

ARTICLE    THE    ELEVENTH. 

[Article  Sixth  of  the  Adopted  Amendments.] 
Instead  of  the  oath  of  allegiance  prescribed  by  the  constitution, 
the  following  oath  shall  be  taken  and  subscribed  by  every  person 
chosen  or  appointed  to  any  office,  civil  or  military,  under  the  gov- 
ernment of  this  Commonwealth,  before  he  shall  enter  on  the  duties 
of  his  office,  to  wit  : 

"I,  A.  B.,  do  solemnly  swear  that  I  will  bear  true  faith  and  alle- 
giance to  the  Commonwealth  of  Massachusetts  and  will  support 
the  constitution  thereof.      So  help  me  God.'''1 

Provided,  that  when  any  person  shall  be  of  the  denomination 
called  Quakers,  and  shall  decline  taking  said  oath,  he  shall  make 
his  affirmation  in  the  foregoing  form,  omitting  the  word  "swear  " 
and  inserting  instead  thereof  the  word  "  affirm,"  and  omitting  the 
words  "So  help  me  God,"'  and  subjoining  instead  thereof,  the  words 
"  This  I  do,  under  the  pains  and  penalties  of  perjury." 

ARTICLE    THE    TWELFTH. 

[Article  Seventh  of  the  Adopted  Amendments.] 

No  oath,  declaration  or  subscription,  excepting  the  oath  prescribed 
in  the  preceding  article,  and  the  oath  of  office,  shall  be  required  of 
the  governor,  lieutenant  governor,  counsellors,  senators,  or  representa- 
tives to  qualify  them  to  perform  the  duties  of  their  respective  offices. 

ARTICLE    THE    THIRTEENTH. 

[Article  Eighth  of  the  Adopted  Amendments.] 

No  judge  of  any  court  in  this  Commonwealth,  (excepting  the 
court  of  sessions)  and  no  person  holding  any  office  under  the  au- 
thority of  the  United  States  (postmasters  excepted)  shall  at  the  same 
time  hold  the  office  of  governor,  lieutenant  governor,  or  counsellor, 
or  have  a  seat  in  the  senate  or  house  of  representatives  of  this  Com- 
monwealth ;  and  no  judge  of  any  court  in  this  Commonwealth 
(except  the  court  of  sessions)  nor  the  attorney  general,  solicitor  gen- 
eral, county  attorney,  clerk  of  any  court,  sheriff,  treasurer  and 
receiver  general,  register  of  probate,  nor  register  of  deeds,  shall  con- 
tinue to  hold  his  said  office  after  being  elected  a  member  of  the 
Congress  of  the  United  States  and  accepting  that  trust ;  but  the 
acceptance  of  such  trust,  by  any  of  the  officers  aforesaid,  shall  be 
deemed  and  taken  to  be  a  resignation  of  his  said  office,  and  judges 
of  the  courts  of  common  pleas  shall  hold  no  other  office  under  the 
government  of  this  Commonwealth,  the  office  of  justice  of  the  peace 
and  militia  offices  excepted. 

ARTICLE    THE    FOURTEENTH. 

[Article  Ninth  of  the  Adopted  Amendments.] 

If  at  any  time  hereafter  any  specific  and  particular  amendment  or 
amendments  to  the  constitution  be  proposed  in  the  General  Court 
and  agreed  to  by  a  majority  of  the  senators  and  two  thirds  of  the 
members  of  the  house  of  representatives  present  and  voting  thereon. 


MASSACHUSETTS    CONVENTION.  621 

such  proposed  amendment  or  amendments  shall  be  entered  on  the  jour- 
nals of  the  two  houses,  with  the  yeas  and  nays  taken  thereon,  and 
referred  to  the  General  Court  then  next  to  be  chosen,  and  shall  be 
published  ;  and  if,  in  the  General  Court  next  chosen  as  aforesaid,  such 
proposed  amendment  or  amendments  shall  be  agreed  to  by  a  ma- 
jority of  the  senators  and  two  thirds  of  the  members  of  the  house  of 
representatives  present  and  voting  thereon,  then  it  shall  be  the  duty 
of  the  General  Court  to  submit  such  proposed  amendment  or  amend- 
ments to  the  people,  and  if  they  shall  be  approved  of  and  ratified  by 
a  majority  of  the  qualified  voters  voting  thereon,  at  meetings  legally 
warned  and  holden  for  that  purpose,  they  shall  become  part  of  the 
constitution  of  the  Commonwealth. 


The  following  form  of  return  was  adopted,  viz. : 
Commonwealth  of  Massachusetts. 

Town  of  County  of 

At  a  legal  meeting  of  the  freeholders  and  other  inhabitants  of  the 
town  of  qualified  to  vote  for  senators  or  representa- 

tives, holden  on  the  second  Monday  of  April,  A.  D.  1821,  pursuant 
to  a  resolution  of  the  Convention  of  delegates,  assembled  at  Boston 
on  the  16th  November,  A.  D.  1820,  for  the  purpose  of  revising  the 
constitution  of  the  Commonwealth  : 

The  votes   on   the  several  amendments  submitted  by  the  Con- 
vention, were  as  follows : 

Article  1st.  Yeas,  Nays, 

Article  2nd.  Yeas,  Nays, 

&c.  &c.  &c.  to 

Article  14th.  Yeas,  Nays. 

Attest, — A.  B.,  Town  Clerk. 

B.  C.   ^ 

D.   E.  >  Selectmen. 
F.  G.  S 


622  MASSACHUSETTS    CONVENTION. 


ADDRESS  TO  THE  PEOPLE. 

The  following  is  the  Address  of  the  Convention  to  the  People  of 
Massachusetts,  accompanying  the  Amendments  proposed  to  be  made 
to  the  Constitution  : 

Fellow-Citizens, 

It  was  provided  in  the  constitution,  established  in  the  year  one 
thousand  seven  hundred  and  eighty,  that  revision  might  be  had, 
after  an  experiment  of  fifteen  years.  When  these  years  had  elapsed, 
the  people  declared  that  they  were  satisfied ;  and  that  they  desired 
no  change.  The  same  satisfaction  was  manifested  during  the  next 
twenty-five  years,  and  would  probably  have  still  continued,  if  the 
separation  of  Maine  from  Massachusetts  had  not  made  it  proper  to 
take  the  opinion  of  the  people  on  the  expediency  of  calling  a  Con- 
vention. 

It  appeared  that  not  one  fourth  part  of  the  qualified  voters  in  the 
State  saw  fit  to  express  any  opinion  ;  and  that  of  the  eighteen 
thousand  three  hundred  and  forty-nine  votes  given  in,  six  thousand 
five  hundred  and  ninety-three  were  against  a  revision. 

We  have  inferred  from  these  facts,  that  you  did  not  desire  any 
important  and  fundamental  changes  in  your  frame  of  government  ; 
and  this  consideration  has  had  its  just  influence  on  our  deliberations, 
in  revising  every  part  of  the  constitution,  which  we  were  required 
to  do,  by  the  words  of  the  law,  under  which  we  are  assembled. 

We  have  kept  in  view  that  the  will  of  the  majority  can  alone  de- 
termine what  the  powers  of  government  shall  be,  and  also  the  man- 
ner in  which  these  powers  shall  be  exercised ;  and  that  it  is,  conse- 
quently, your  exclusive  right  to  decide,  whether  all,  or  any  of  the 
amendments,  which  we  think  expedient,  shall  be  adopted  or 
rejected. 

In  the  performance  of  our  duty,  we  have  been  mindful  of  the 
character  of  Massachusetts  ;  and,  that  the  profit  of  experience  is 
justly  valued,  and  that  the  precious  right  of  self-government  is  well 
understood  in  this  community.  Perfect  unanimity  is  not  to  be  ex- 
pected in  a  numerous  assembly.  Whatever  difference  of  opinion 
may  have  occurred  as  to  expediency,  there  has  been  no  difference 
as  to  the  ultimate  object,  viz.,  the  public  security  and  welfare.  If 
we  have  not  all  agreed  in  every  measure  which  we  recommend,  we 
are  satisfied,  that  natural,  and  honest  difference  of  opinion,  must 
ever  prevent,  in  a  like  numerous  meeting,  greater  accordance  than 
has  prevailed  among  us. 

Every  proposed  change  or  amendment  has  been  patiently  and 
fairly  examined,  and  has  been  decided  upon  with  the  utmost  care 
and  solicitude  to  do  right. 


MASSACHUSETTS    CONVENTION.  623 

We  have  the  fullest  confidence  that  you  will  take  these  things 
into  view,  when  you  perform  the  serious  duty  of  deciding,  for  your- 
selves, and  for  successive  generations,  on  the  result  of  our  efforts. 

In  framing  a  constitution,  or  revising  one,  for  an  extensive  Com- 
monwealth, in  which  various  interests  are  comprised,  nothing  more 
can  be  hoped  for,  than  to  establish  general  rules,  adapted  to  secure 
the  greatest  good  for  the  whole  society.  The  revised  constitution, 
which  we  now  respectfully  submit  to  you,  can  only  be  considered 
as  one  general  law,  composed  of  connected  and  dependent  parts. 
If  any  one  part,  considered  by  itself,  seem  not  to  be  the  best  that 
could  be,  its  merit  and  the  justice  of  its  claim  to  approbation  can 
be  known  only  by  its  connection  in  the  system  to  which  it  apper- 
tains. 

With  these  remarks  we  beg  leave  to  state  the  amendments  which 
we  have  agreed  on,  and  our  reasons  for  having  done  so. 

THE    DECLARATION    OF    RIGHTS. 

It  is  known  to  us,  that  the  eminent  men  who  framed  the  consti- 
tution under  which  we  have  lived  bestowed  on  the  only  article  of 
the  declaration  of  rights,  which  has  occasioned  much  discussion 
among  us,  the  greatest  attention.  They  appear  to  have  considered 
religion  in  a  twofold  view  ;  first,  as  directory  to  every  rational  being, 
in  the  duties  which  he  owes  to  the  Creator  of  the  universe  ;  but 
leaving  to  every  one  to  decide  for  himself,  on  the  manner  in  which 
he  shall  render  his  homage,  avow  his  dependence,  express  his  grati- 
tude, and  acknowledge  his  accountability ;  and,  secondly,  as  a 
social  duty,  prescribing  rules  to  men  in  their  intercourse  with  each 
other  as  members  of  the  same  family.  They  held  social  worship 
to  be  most  intimately  connected  with  social  welfare.  They  believed 
moral  excellence  to  be  no  less  the  effect  of  example,  and  of  habit, 
than  of  precept.  They  seem  to  have  been  convinced,  that  in  pro- 
portion as  the  members  of  civil  society  are  impressed  with  rever- 
ence for  the  social  rules  contained  in  revealed  religion,  will  they  be 
faithful  in  performing  those  obligations  on  which  political  happiness 
depends.  Upon  such  principles  they  rested  those  provisions  which 
recpaire  an  habitual  observance  of  the  Sabbath,  and  the  support  of 
public  teachers  in  the  sacred  offices  of  that  day.  In  all  these  senti- 
ments we  do  most  heartily  concur. 

But  we  have  thought  it  necessary  to  propose  some  changes  in  the 
third  article. 

The  public  sentiment  on  that  part  of  the  article  which  invests 
the  Legislature  with  authority  to  enjoin  attendance  on  public  wor- 
ship, has  long  been  definitely  expressed,  and  is  well  understood  ; 
and  we,  therefore,  propose  that  so  much  of  this  article  as  relates  to 
this  subject,  should  be  annulled. 

We  are  also  of  opinion  that  members  of  all  religious  societies 
ought  to  have  the  right  and  privilege  to  join,  and  worship  with, 
any  other  society  of  the  same  denomination  ;  as  they  now  have  the 
right  to  join  themselves  to  any  society,  of  a  different  denomination 


624  MASSACHUSETTS    CONVENTION. 

from  that  with  which  they  have  worshipped ; — furthermore,  that 
the  power  and  duty  of  the  Legislature  to  require  provision  to  be 
made  for  the  institution  of  public  worship,  and  for  the  support  and 
maintenance  of  public  teachers,  should  extend,  and  be  applied  as 
well  to  societies  which  are  unincorporated,  as  to  those  which  are 
incorporated. 

We  recommend  also,  a  provision,  that  all  taxes  assessed  for  the 
support  of  public  worship,  upon  real  estate  of  any  non-resident  pro- 
prietor, shall  be  applied  towards  the  support  of  public  worship  in 
the  town,  precinct,  or  parish,  by  which  such  taxes  are  assessed ; 
unless  such  proprietor  shall  be  resident  within  the  Commonwealth, 
and  shall  be  of  a  different  denomination  of  Christians  from  that  of 
the  town,  precinct,  or  parish,  by  which  such  taxes  are  assessed. 

We  propose  further  to  amend  the  declaration  of  rights,  so  as  to 
provide,  that  persons  on  trial  for  crimes  may  be  heard  by  themselves 
and  counsel,  instead  of  themselves  or  counsel,  as  the  article  now 
stands. 

We  propose  another  amendment,  that  no  person  shall  suffer  im- 
prisonment, or  other  ignominious  punishment,  on  official  informa- 
tion ;  nor  unless  on  indictment  by  a  grand  jury ;  except  in  cases  ex- 
pressly provided  for  by  law.  This  amendment  takes  from  public 
prosecutors  the  common  law  right  to  arraign,  of  their  own  authority, 
any  citizen  for  misdemeanors,  or  crimes,  without  the  intervention 
of  a  grand  jury  representing  the  people  of  each  county. 

ALTERATION    OF    THE     POLITICAL    YEAR. 

We  recommend  that  there  should  be  ordinarily  but  one  session  of 
the  General  Court  in  a  year.  We  believe  that  one  is  sufficient ;  that 
the  expense  of  legislation  will  be  thereby  diminished,  and  that  it 
will  be  convenient  to  bring  the  common  and  the  political  year  into 
conformity. 

A  necessary  consequence  of  this  change  is  an  alteration  of  the 
time  of  holding  elections ;  the  day  most  convenient  for  this  purpose, 
in  the  opinion  of  the  Convention,  is  the  second  Monday  of  Novem- 
ber. We  propose  that  all  the  elections  of  State  officers,  which  are 
to  be  made  by  the  people,  shall  be  made  on  that  day.  This  pro- 
vision will  lessen  the  number  of  days,  which,  by  our  present  consti- 
tution, must  be  devoted  to  elections.  It  will,  we  believe,  induce  a 
fuller  attendance  of  the  people,  and  a  more  certain  expression  of  the 
public  voice,  in  the  important  duty  of  choosing  public  officers. 

ELECTORS. 

We  are  satisfied  that  the  qualifications  as  now  required  in  electors, 
produce  some  inconveniences,  and  are  liable  to  some  abuses.  After 
a  patient  investigation  of  this  subject,  we  have  concluded  that  a  re- 
sidence of  twelve  months  within  the  State,  and  of  six  months  in  a 
town,  or  district,  next  preceding  an  election,  and  payment  of  a  state 
or  county  tax,  in  the  Commonwealth,  constitute  a  uniform  and  in- 
telligible rule,  as  to  the  right  of  voting  ;  and  we  propose  the  adoption 


MASSACHUSETTS    CONVENTION.  625 

of  this  rule,  in  all  elections  of  State  officers,  and  the  abolition  of  all 
other  qualifications  now  required. 

We  believe  that  the  change,  which  we  recommend  in  this  respect, 
will  relieve  selectmen  from  much  perplexity,  and  will  enable  them 
easily  to  distinguish  between  those  who  have  a  right  to  vote,  and 
those  who  have  not. 

THE     SENATE. 

After  the  most  careful  and  faithful  examination  of  the  principles 
of  government,  we  have  not  found  it  expedient  to  change  the  basis 
on  which  the  senate  was  placed,  by  the  constitution  which  we  have 
revised.  It  is  an  admitted  principle,  that  the  legislative  power 
should  be  given  to  two  distinct  assemblies,  each  having  an  absolute 
negative  on  the  other. 

In  considering  this  subject,  we  have  distinguished  between  the 
people,  of  whom  we  are  ourselves  a  part,  and  those  who  may  be 
chosen  to  legislate.  It  is  the  people  who  are  to  be  secured,  in  their 
rights  and  privileges,  by  a  constitution,  and  not  their  public  servants. 
This  object  can  only  be  effected  by  a  clear  and  permanent  limita- 
tion of  the  power  which  is  to  be  exercised. 

The  people  may  impart  whatsoever  power  they  see  fit.  Their 
security  consists  in  doing  this  in  such  manner,  that  the  trust  which 
they  create  may  not  be  abused,  nor  the  public  welfare  betrayed.  It 
is  therefore  wise  to  provide  for  frequent  elections  ;  and  to  require 
certain  qualifications  in  the  elected  ;  and  the  concurrence  of  differ- 
ent legislative  branches  on  all  public  laws  ;  and  so  to  constitute 
those  branches,  as  that  no  act  shall  obtain  their  joint  approbation, 
which  is  not  intended  to  promote  the  common  welfare. 

All  free  governments  of  modern  times  have  found  it  indispen- 
sable, not  only  to  have  two  distinct  legislative  branches,  but  to  place 
them  on  such  different  foundations  as  to  preclude,  as  much  as  pos- 
sible, all  such  dangerous  sympathy  and  union,  as  may  govern  and 
direct  the  will  of  a  single  assembly. 

If  the  number  of  inhabitants  be  the  rule  by  which  the  members 
of  the  two  branches  are  to  be  apportioned,  and  all  are  to  be  chosen  at 
the  same  time,  and  by  the  same  electors,  we  think  that  the  safety 
which  the  constitution  is  intended  to  effect,  may  not,  always,  be  ob- 
tained. If  an  election  should  take  place  when  very  strong  and 
general  excitements  are  felt,  (and  from  such,  no  human  society  can 
be  always  exempt)  there  would  be  little  to  choose  between  placing 
legislators  so  elected  in  the  same,  or  in  two  different  assemblies. 

We  repeat  that  the  people's  agents  ought  ever  to  be  distinguished, 
in  settling  a  frame  of  government,  from  the  people  themselves  ;  and 
that  no  more  should  be  hazarded  on  the  manner  in  which  power 
may  be  used,  than  necessarily  must  be,  to  give  power  enough  to  do 
that  which  should  be  done. 

The  mode  in  which  the  two  branches  should  be  constituted,  to 
secure  the  check  which  we  consider  to  be   so  highly  important,  is 
79 


626  MASSACHUSETTS    CONVENTION. 

the  only  point,  as  to  the  senate,  which  has  been  much  discussed 
among  us. 

In  some  of  the  states  in  our  national  confederacy,  elections  for 
two  or  more  years  have  been  adopted,  as  a  security  for  the  inde- 
pendence and  fidelity  of  senators.  In  others  of  them,  a  senator 
must  have  a  large  landed  estate  ;  in  others,  such  an  estate  is  a  re- 
quired qualification  in  electors ;  and  in  some,  a  landed  estate  is 
required,  both  in  the  elector  and  the  senator. 

The  basis  adopted  in  the  constitution  of  this  State  is,  that  sena- 
tors shall  be  apportioned,  throughout  the  State,  according  to  the 
amount  of  public  taxes  paid  in  districts  of  the  State.  That  is, 
that  the  liability  to  be  taxed,  shall  be  accompanied  by  the  right  to 
be  represented.  We  have  not  heard  that  this  principle  has  been 
complained  of  by  the  people  ;  nor  do  we  believe  it  is  justly  excep- 
tionable, in  itself;  on  the  contrary,  the  experience  of  forty  years 
entitles  it  to  the  most  entire  respect  and  confidence.  We  have  not 
thought  it  expedient,  nor  do  we  believe  that  you  expected  of  us, 
to  make  any  fundamental  change  in  this  department.  We  have 
done  no  more  than  to  make  the  necessary  provisions  as  to  districts, 
and  to  fix  the  number  of  senators.  We  recommend  that  the  num- 
ber should  be  thirty-six ;  this  number  can  be  more  conveniently 
distributed  than  any  other  throughout  the  State.  A  smaller  number 
is  not  sufficient  to  perform  the  duty  required  of  the  senate  ;  nor 
should  the  power  of  negativing  the  will  of  the  house  of  representa- 
tives, be  confided  to  a  smaller  number. 

THE     HOUSE     OF    REPRESENTATIVES. 

We  have  found  great  difficulty  in  amending  the  representative 
system  in  a  satisfactory  manner.  We  have  all  agreed,  that  whether 
the  representatives  are  few,  or  many,  representation  should  be  ac- 
cording to  population,  in  this  branch.  It  was  the  general  opinion, 
that  the  number  should  be  reduced  ;  that  town  representation  should 
be  preserved  ;  that  payment  should  be  made  from  the  State  treas- 
ury. Such  mode  of  payment  has  been  repeatedly  voted  in  the 
house,  and  on  one  occasion  it  obtained  the  concurrence  of  the 
senate.  There  is  reason  to  believe  that  it  will  become  the  estab- 
lished mode  of  payment.  But  if  it  be  so,  and  the  present  system  of 
representation  continues,  the  expense  must  soon  become  an  insup- 
portable burthen.  A  house  composed  of  one  hundred  or  one  hun- 
dred and  fifty  members,  may  be  fully  sufficient  for  all  purposes  of 
legislation  ;  but  so  great  a  reduction  could  not  be  made  without  di- 
viding the  State  into  districts,  and  consequently  giving  up  represen- 
tation by  towns. 

We  endeavored  in  the  system  which  we  submit  to  you — 1.  To 
reduce  the  number  ;  2.  To  preserve  the  privileges  of  town  represen- 
tation ;  3.  To  provide  for  payment  out  of  the  State  treasury  :  4.  To 
insure  a  general  and  constant  attendance  of  the  members  throughout 
the  session. 

To  accomplish  these  objects,  we  recommend  that  twelve  hundred 
inhabitants  should  have  one  representative,  and  that  twenty-four  hun- 


MASSACHUSETTS     CONVENTION.  627 

dred  be  the  mean  increasing  number  for  every  additional  represen- 
tative. 

But  as  nearly  one  half  of  the  towns  in  the  State  contain  on  an 
average  about  eight  hundred  inhabitants,  we  propose  that  these 
towns  should  each  choose  a  representative  every  other  year,  and 
that  they  should  be  divided,  by  the  Legislature,  into  two  classes  for 
this  purpose  ;  one  or  the  other  of  which  classes  will  choose  every 
year. 

To  show  the  application  of  this  system  ;  about  seventy-four  rep- 
resentatives will  come  every  year,  from  the  classed  towns,  which 
will  be  one  representative  for  every  1632  inhabitants  in  all  the 
classed  towns ;  from  those  towns  containing  between  twelve  hun- 
dred and  twenty-four  hundred,  will  come  one  representative  for  every 
1650  inhabitants  ;  from  those  towns  containing  more  than  thirty-six 
hundred  inhabitants  will  come  one  representative  for  every  2400  in- 
habitants. These  calculations,  (necessarily  taken  from  the  census 
of  the  year  1810)  are  not  precisely  accurate  ;  but  they  are  sufficiently 
so  to  show  the  effect  of  the  system. 

It  is  apparent  that  towns  having  between  twelve  hundred  and 
thirty-six  hundred  inhabitants,  can  send  but  one  representative  ;  and 
that  there  will  be  large  fractions  in  some  of  these  towns.  Perfect 
equality  is  not  attainable  under  any  system.  There  are  fewer  in- 
equalities in  the  proposed  system,  than  in  any  which  we  have  been 
able  to  form,  if  the  four  objects  which  we  have  mentioned  are  to  be 
provided  for ;  and  we  believe  that  the  progress  of  population  will 
constantly  diminish  those  inequalities  which  may  now  exist. 

We  propose  that  in  those  years  in  which  the  valuation  is  settled, 
every  town  shall  be  represented. 

By  the  proposed  system  the  number  of  representatives  will  be 
about  two  hundred  and  sixty.  We  have  thought  it  proper  to  offer 
to  you  further  provisions,  intended  to  prevent  an  increase,  in  the 
number  of  representatives,  over  two  hundred  and  seventy-five,  in 
any  future  time.  This  may  easily  be  done,  by  empowering  the 
Legislature  to  augment  the  ratio,  after  successive  enumerations  of 
the  inhabitants.  There  was  very  little  difference  of  opinion  among 
us  on  the  expediency  of  providing,  that  no  town  shall  be  hereafter 
incorporated  with  the  right  of  sending  a  representative,  unless  it 
contain  twenty-four  hundred  inhabitants. 

If  you  are  not  willing  to  district  the  Commonwealth  to  elect 
members  of  the  house  ;  if  you  are  not  willing  to  continue  the  pres- 
ent mode  of  numerous  representation,  with  the  liability  to  the  en- 
ormous expense  which  would  accrue  from  paying  out  of  the  public 
treasury,  some  such  system  as  we  propose  must  be  resorted  to.  We 
will  not  say  that  this  is  the  best  that  could  be  ;  but  we  may  justly 
say,  that  we  have  spared  no  exertion  to  form,  and  to  present  to  you, 
the  best  which  we  could  devise. 

LIEUTENANT    GOVERNOR    AND    COUNCIL. 

We  recommend  that  the  lieutenant  governor  should  have  the  like 
qualifications  as  are  required  in  the  chief  magistrate,  for  the  obvious 


628  MASSACHUSETTS    CONVENTION. 

reason,  that  the  duties  of  the  executive  department  may  devolve 
on  him. 

During  the  last  fifteen  years  the  counsellors  have  been  chosen  by 
the  Legislature,  from  the  people  at  large,  after  an  election  from 
among  those  citizens,  who  were  returned  as  senators  and  counsel- 
lors, followed  by  resignation.  Experience  has  shown  no  inconven- 
ience in  this  mode  of  election  ;  and  we  have  deemed  it  to  be  proper 
so  to  amend  the  constitution,  as  to  establish  this  mode.  This 
change,  which  we  propose,  is,  in  effect,  nothing  more  than  doing 
away  the  useless  form  of  choosing  from  the  senate.  We  did  not 
prefer  to  elect  counsellors  by  a  general  ticket,  because  we  believe 
that  there  would  be  some  difficulty  in  agreeing  on  candidates ;  and 
that  the  electors,  throughout  the  State,  would  not  have  such  knowl- 
edge of  candidates,  as  would  enable  them  to  exercise  the  right  of 
suffrage  in  a  manner  satisfactory  to  themselves.  We  did  not  prefer 
to  choose  counsellors  in  districts,  because  we  were  of  opinion  that 
it  would  not  be  agreeable  to  the  citizens  to  be  associated  to  exercise 
the  right  of  suffrage,  on  this  occasion,  as  they  would  not  be  so 
united  on  any  other.  And  that  it  would  be  a  useless  labor  and  ex- 
pense to  form  such  districts,  and  an  unnecessary  burden  on  the 
people  to  meet  and  vote  in  them. 

We  conceive  that  a  choice  by  the  Legislature,  is  a  choice  by  the 
people,  through  the  agency  of  their  public  servants.  That  counsel- 
lors so  chosen,  and  who  enter  on  the  duties  assigned  to  them  as 
soon  as  they  are  chosen,  will  be  more  independent  of  the  chief 
magistrate,  and  more  independent  of  those  who  desire  executive 
favor,  than  if  chosen  in  any  other  mode,  though  not  less  responsible 
to  the  people,  because  elected  by  the  joint  ballot  of  the  two  houses. 
We  have  all  concurred  in  the  opinion,  that  more  than  seven  coun- 
sellors are  not  necessary. 

THE    JUDICIARY. 

In  the  judicial  department,  we  think  two  amendments  are  expe- 
dient. 

An  independent  judiciary  is  a  fundamental  principle  of  a  free 
government.  We  cannot  so  well  express  our  sentiments  on  this 
important  subject,  as  by  referring  to  the  twenty-ninth  article  of  the 
declaration  of  rights. 

It  is  there  said,  "It  is  the  right  of  every  citizen  to  be  tried  by 
judges  as  free,  impartial,  and  independent,  as  the  lot  of  humanity 
will  admit:"  and  therefore,  "that  judges  should  hold  their  offices 
as  long  as  they  behave  themselves  well." 

The  judges  have  not  such  tenure  of  office,  unless  the  constitu- 
tion be  understood  to  mean,  that  they  are  not  liable  to  removal, 
until  they  have  had  an  opportunity  to  show  that  the  alleged  causes 
for  removal  are  unfounded,  or  insufficient.  The  Legislature,  in  re- 
moving a  judge,  exercises  not  only  a  discretionary,  but  a  judicial 
power.  Judgment  cannot  justly  be  given,  in  any  case  affecting 
any  interest,  even  of  the  humblest  citizen,  unless  the  cause  has 


MASSACHUSETTS    CONVENTION.  629 

been  first  stated,  and  it  has  been  permitted  to  him  to  show,  what 
he  considers  to  be  the  truth  of  his  case. 

It  cannot,  then,  be  consistent  with  the  plainest  principles  of 
justice,  that  the  public  functions  of  a  citizen,  and  perhaps  his  repu- 
tation, may  be  taken  from  him,  without  any  other  notice  from  those 
who  may  exercise  such  power,  than  that  they  have  exercised  it,  and 
that  his  relation  to  the  public  has  ceased. 

In  whatever  estimation  we  may  hold  the  rights  and  interests  of 
any  individual  who  sustains  a  high  judicial  office,  it  is  rather  the 
public  right  and  interest,  which  move  us  to  propose  the  subjoined 
amendment. 

The  people  can  have  no  dearer  interest  in  anything  pertaining  to 
government,  than  in  the  interpretation  of  the  laws,  and  in  the  ad- 
ministration of  justice,  affecting  life,  liberty,  property,  and  character. 
The  constitution,  with  the  explanatory  amendment  which  we  pro- 
pose, secures  to  the  people  the  unquestionable  right  of  removing  the 
unfit,  the  unworthy,  and  the  corrupt ;  while  it  secures  to  them  the 
no  less  valuable  right  of  preserving  to  themselves,  the  able,  the  up- 
right, and  the  independent  magistrate. 

We  propose,  therefore,  so  to  amend  the  constitution  as  to  require 
that  no  judicial  officer  shall  be  removed  from  office,  until  the  al- 
leged causes  of  removal  are  stated  on  the  records  of  the  Legislature  ; 
nor  until  the  individual,  thereby  affected,  shall  have  had  an  oppor- 
tunity to  be  heard. 

In  the  second  article  of  the  third  chapter  it  is  provided,  that  each 
branch  of  the  Legislature,  as  well  as  the  governor  and  council,  shall 
have  authority  to  require  the  opinion  of  the  judges,  on  important 
questions  of  law,  and  upon  solemn  occasions.  We  think  this  pro- 
vision ought  not  to  be  a  part  of  the  constitution ;  because,  First, 
each  department  ought  to  act  on  its  own  responsibility.  Second. 
Judges  may  be  called  on  to  give  opinions  on  subjects,  which  may 
afterwards  be  drawn  into  judicial  examination  before  them,  by  con- 
tending parties.  Third.  No  opinion  ought  to  be  formed  and  ex- 
pressed, by  any  judicial  officer,  affecting  the  interest  of  any  citizen, 
but  upon  full  hearing,  according  to  law.  Fourth.  If  the  question 
proposed  should  be  of  a  public  nature,  it  will  be  likely  to  partake 
of  a  political  character ;  and  it  highly  concerns  the  people  that  ju- 
dicial officers  should  not  be  involved  in  political  or  party  dis- 
cussions. 

We,  therefore,  recommend  that  this  second  article  should  be  an- 
nulled. 

SECRETARY  AND  TREASURER. 

We  recommend  that  the  executive  should  be  empowered  to  fill 
vacancies  occurring  in  these  departments,  during  the  recess  of  the 
General  Court,  until  a  constitutional  election  is  made. 

MILITIA. 

We  propose  that  the  office  of  commissary  general  should  not  be 
filled  by  legislative  election ;  nor  in  any  other  manner,  excepting 


630  MASSACHUSETTS    CONVENTION. 

as  the  Legislature  may  by  law  provide,  if  such  an  officer  should, 
hereafter,  be  necessary. 

As  minors  are  required  by  law  to  perform  military  duty,  and  have 
consequently  a  direct  interest  in  the  qualifications  for  office  in  those 
whom  they  are  holden  to  obey,  the  want  of  discretion,  which  is 
legally  affirmed  of  minors  in  other  cases,  is  not  applicable  to  this ; 
and  we  have,  therefore,  proposed  an  amendment,  which  authorizes 
those  minors,  who  are  enrolled  in  the  militia,  to  vote  in  the  choice 
of  officers. 

To  diminish  expense  in  the  militia  service,  and  to  secure  able 
and  faithful  performance  of  duty  therein,  we  think  it  expedient  to 
empower  the  Legislature  to  provide,  by  law,  for  the  removal  of 
officers,  in  certain  cases. 

OATHS    OF    OFFICE. 

We  recommend  that  the  oath  of  abjuratidn  be  abolished.  How- 
ever proper  this  oath  may  have  been,  while  this  country  was  main- 
taining its  conflict  for  independence  with  the  mother  country,  the 
success  of  that  conflict,  and  the  lapse  of  time,  have  rendered  that 
oath  inapplicable  to  our  condition. 

We  have  agreed  that  the  declaration  of  belief  in  the  Christian 
religion  ought  not  to  be  required  in  future ;  because  we  do  not 
think  the  assuming  of  civil  office  a  suitable  occasion  for  so  declar- 
ing ;  and  because  it  is  implied,  that  every  man  who  is  selected  for 
office,  in  this  community,  must  have  such  sentiments  of  religious 
duty  as  relate  to  his  fitness  for  the  place  to  which  he  is  called. 

DISQUALIFICATIONS    FOR    OFFICE. 

Some  amendments  are  recommended  in  this  division  of  the  con- 
stitution, founded  on  one  or  other  of  these  principles,  viz.  :  First. 
To  prevent  the  exercise,  by  the  same  individual,  of  those  powers  of 
government,  which  the  constitution  ordains  to  be  kept  separate. 
Secondly.  To  preserve  that  distinction  between  the  National  and 
State  governments,  which  the  principles,  on  which  these  govern- 
ments are  relatively  founded,  require. 

NOTARIES    PUBLIC. 

No  difference  of  opinion  occurred,  on  the  expediency  of  transfer- 
ring the  appointment  of  these  officers  from  the  legislative,  to  the 
executive  department. 

HARVARD     UNIVERSITY. 

We  have  thought  it  proper  to  inquire  into  the  present  state  of 
this  ancient  and  respectable  institution,  and  have  done  this  by  the 
agency  of  a  fully  competent  committee.  We  have  made  this  in- 
quiry, because  this  seminary  has  experienced  the  patronage  of  gov- 
ernment from  its  earliest  foundation ;  and  was  justly  held  to  be 
worthy  of  appropriate  constitutional  provisions,  by  our  predeces- 
sors. It  appears  that  the  powers  conferred  on  Harvard  University 
have  always  been  exercised,  and  that  the  duties  required  of  it  have 
always  been   performed,  with  a  sincere  and  ardent  desire  to  promote 


MASSACHUSETTS    CONVENTION.  631 

the  diffusion  of  useful  knowledge  ;  and  to  establish  and  preserve  an 
honorable  reputation  in  literature  and  morals  in  this  community. 

We  have,  however,  thought  it  proper,  with  the  consent  and  ap- 
probation of  the  corporation  and  overseers  of  the  University,  to 
propose  to  you,  that  the  constitution  should  be  so  amended  as  to 
make  ministers  of  the  gospel,  of  any  denomination,  eligible  to  the 
office  of  overseers. 

For  further  illustration  of  this  interesting  subject,  we  beg  leave 
to  refer  to  the  report  of  the  committee,  which  was  read  in  Conven- 
tion, and  ordered  to  be  published.* 

INCORPORATION     OF      CITIES. 

It  appeared  to  us,  that  it  would  be  convenient,  and  proper,  that 
towns  containing  more  than  twelve  thousand  inhabitants,  should, 
on  application  of  their  qualified  voters,  by  petition  to  the  Legisla- 
ture, be  incorporated  with  municipal  or  city  powers  and  privileges. 
Without  such  powers  and  privileges  the  inhabitants  of  such  towns 
must  continue  to  vote  in  one  meeting,  however  numerous  they 
may  become.  This  is  already  found  to  be  an  inconvenience  in  two 
towns,  for  the  removal  of  which,  provision  ought  to  be  made. 
Under  the  limitations  and  restrictions  which  we  have  provided, 
we  can  see  no  reason  why  the  power  to  incorporate,  should  not  be 
vested  in  the  Legislature.  And  we  therefore  recommend  an  altera- 
tion of  the  constitution,  so  as  to  effect  this  purpose. 

PROVISION    FOR    FUTURE    AMENDMENTS. 

It  may  be  necessary,  that  specific  amendments  of  the  constitu- 
tion should  hereafter  be  made.  The  preparatory  measures  in  as- 
sembling a  Convention,  and  the  necessary  expense  of  such  an  as- 
sembly, are  obstacles  of  some  magnitude,  to  obtaining  amendments 
through  such  means ;  we  propose  that  whenever  two  thirds  of  the 
house  of  representatives,  and  a  majority  of  the  senate  in  two  suc- 
cessive Legislatures,  shall  determine  that  any  specific  amendment  of 
the  constitution  is  expedient,  such  proposed  amendment  shall  be 
submitted  to  the  people  ;  and  if  accepted  by  the  people,  the  consti- 
tution shall  be  amended  accordingly.  We  believe  that  the  consti- 
tution will  be  sufficiently  guarded  from  inexpedient  alterations, 
while  all  those  which  are  found  to  be  necessary,  will  be  duly  con- 
sidered and  may  be  obtained  with  comparatively  small  expense. 

MODE    OF     SUBMITTING    AMENDMENTS. 

We  have  determined  that  it  is  not  expedient  to  make  a  new  draft 
of  the  constitution ;  we  believe  it  would  be  more  acceptable  to  you, 
to  see  the  proposed  amendments  separately.  We  therefore  send 
them  to  you  in  this  manner ;  and  numbered  successively  ;  and  ac- 
companied by  a  form,  in  which  assent  or  dissent  may  be  easily  ex- 
pressed, and  made  known. 

You  will  perceive  that  if  the  amendments  are  adopted,  the 
amended  constitution  will  go   into  operation  on  the  fourth  day  of 

'[Pages  527-532  of  this  volume.] 


632  MASSACHUSETTS    CONVENTION. 

July,  in  the  present  year  ;  and  that  the  first  elections  will  take  place 
on  the  second  Monday  of  November  next ;  and  that  the  state  offi- 
cers then  chosen  will  commence  their  official  duties  on  the  first 
Wednesday  of  January,  next  following. 

After  due  deliberation,  we  have  decided  that  it  is  most  expedient 
and  proper  that  a  large  Committee  of  the  Convention  shall  be  in 
session  on  the  fourth  Wednesday  of  May  next,  to  receive  the  re- 
turns from  the  several  towns ;  and  that  this  committee  shall  exam- 
ine the  returns,  and  certify  the  result  to  the  governor,  and  to  the 
Legislature,  which  will  be  in  session  on  and  after  the  last  Wednes- 
day of  May  next.  The  Legislature  will  then  declare  to  the  people, 
in  such  manner  as  the  Legislature  may  see  fit,  the  will  of  the  people 
on  the  amendments,  which  we  submit  to  them. 

We  think  this,  fellow-citizens,  a  proper  occasion  to  allude  to 
those  grateful  sentiments  which  we  feel  in  common  with  yourselves 
for  the  blessings  which  have  been  experienced  in  this  highly 
favored  community. 

That  pious,  virtuous,  well-informed  men  should  have  been  in- 
spired to  seek  a  home  on  these  shores,  and  should  have  been  sup- 
ported in  all  the  perils  inseparable  from  their  enterprise  ;  that  their 
intelligence,  and  manly  virtues,  should  have  been  transmitted 
through  successive  generations  to  descendants,  who  dared  to  will 
and  to  effect  a  termination  of  all  political  connection  with  a  pow- 
erful kingdom  ;  and  these  descendants  should  have  been  able,  in 
the  midst  of  war  and  of  civil  dissention,  to  establish  a  republic  so 
wisely  balanced,  as  to  accomplish  every  rational  and  beneficent  pur- 
pose which  they  had  in  view,  are  subjects  which  come  to  our  recol- 
lection, at  this  time,  with  peculiar  interest.  We  do  feel,  and  it  be- 
comes us  to  acknowledge,  that  we  are  a  favored  and  a  happy  peo- 
ple in  our  national  and  domestic  relations ; — and  especially  that 
while  so  much  of  the  civilized  world  is  struggling  with  serious  and 
fearful  difficulties,  it  is  permitted  to  this  community,  peaceably  to 
assemble,  and  to  deliberate,  and  decide  on  the  best  means  of  secur- 
ing and  perpetuating  social  benefits  and  unquestioned  rights. 

Among  the  duties  of  gratitude  is  that  of  showing,  that  we  are 
worthy  of  these  blessings,  by  conscientiously  preserving  them; 
among  the  obligations  which  are  inseparably  connected  with  these 
blessings,  is  that  of  transmitting  them,  to  those  who  are  to  come, 
as  faithfully,  as  they  have  been  guarded  for  us. 

In  Convention,  Jan.  9,  1821 — read  and  accepted. 
A  true  copy, 

ISAAC  PARKER,  President. 

Attest,     Benj.  Pollard,  Secretary. 


APPENDIX 


In  accordance  with  the  second  of  the  resolves  finally  adopted  by 
the  Convention,  the  people  assembled  in  their  respective  towns  and 
districts,  on  Monday,  April  9th,  1821,  and  voted  upon  the  fourteen 
amendments  submitted  to  them. 

The  result  of  the  ballotting  was  as  follows  : 


m  n  n  c-,  o  'i5  ^  o  n  -  o  o  n 
o  •—  co  (^  en  -sj  co  co  csj  co  co  <M  z : 

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Gl  „  „  „  „  &( 


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— .  —  — .  s^  —        i—  i-i 


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n9tH        i-4  -1 


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t^^aiO'-iccrtOi^'io^oco 


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80 


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«5DiOOf)CO'-'C3COOf--10 
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co  co  co  o  co  © 


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634 


APPENDIX. 


RECAPITULATION. 


YEAS. 

NATS. 

MAJORITY. 

11,065 

19,547 

8,482  negative. 

14,164 

16,728 

2,564  negative. 

17,949 

10,707 

7,242  affirmative. 

14,368 

14,306 

62  affirmative. 

9,904 

20,729 

10,825  negative. 

18,702 

10.150 

8,552  affirmative. 

14,174 

13,577 

657  affirmative. 

22,726 

6,444 

16,282  affirmative. 

12,471 

14,518 

2,047  negative. 

8,020 

20,123 

12,103  negative. 

17,552 

9,244 

8,308  affirmative. 

13,782 

12,480 

1,302  affirmative. 

18,048 

8,412 

9,636  affirmative. 

16,325 

11,661 

4,664  affirmative. 

1.  Bill  of  Rights, 

2.  Political  Year, 

3.  Governor's  Negative, 

4.  City  Government, 

5.  Senate  and  House, 

6.  Qualification  of  Voters, 

7.  Notaries,  &c, 

8.  Militia  Voters, 

9.  Removal  of  Judges, 

10.  Harvard  College, 

11.  Oath  of  Allegiance, 

12.  Repeal  of  Test, 

13.  Incompatibilities, 

14.  Mode  of  Amendments, 

From  the  towns  of  Chesterfield,  New  Ashford,  Florida  and  Randolph,  there  was 
no  return.  The  returns  from  Longmeadow,  Saugus  and  Provincetown,  were  infor- 
mal. The  returns  of  these  towns,  if  accepted,  would  not  have  varied  the  result. 
Longmeadow  gave  a  majority  of  28  in  favor  of  the  fourth  article,  Saugus  a  majority 
of  25  against  it,  and  Provincetown  a  majority  in  favor  of  it. 

In  accordance  with  the  third  of  the  resolves,  the  committee  of 
the  Convention  met  at  the  State  House,  on  Wednesday,  May  24th, 
1821,  and  examined  the  votes  returned  for  and  against  each  of  the 
articles  of  amendment.  They  submitted  the  following  report  of 
their  doings : 

Commonwealth  of  Massachusetts. 

In  the  Senate  Chamber,  May  24th,  1821. 
The  committee  appointed  by  the  Convention  of  the  Delegates  of 
the  people  of  Massachusetts,  held  in  Boston,  on  the  third  Wednes- 
day of  November,  A.  D.  1820,  for  the  purpose  of  revising  and 
amending  the  constitution  of  said  Commonwealth,  assembled  ac- 
cording to  a  resolution  of  said  Convention,  and  having  opened  and 
examined  the  returns  of  votes  from  the  several  towns  and  districts 
within  the  Commonwealth,  do  certify  that  the  number  of  votes  duly 
returned,  for  and  against  each  article  of  amendment  submitted  to 
the  people  by  the  Convention,  is  as  stated  in  the  following  sched- 
ule, viz.  : 

Article     1st,      11,065  Yeas, 
14,164      " 


1st, 

2nd, 

3d. 

4th, 

5th, 

6th. 

7th, 

8th, 

9th. 

10th, 


17,949 
14,368 

9,904 
18,702 
14,174 
22,726 
12,471 

8.020 


19,547  Nays. 

16.728  " 
10,707  " 
14,306  " 

20.729  " 
10,150  " 

13.517  " 
6,444  " 

14.518  " 
20.123  " 


APPENDIX. 


635 


Article  11th,  17,552  Yeas, 

"       12th,  13,782  " 

"       13th,  18,848  " 

"       14th,  16,325  " 

(Signed  by) 

Isaac  Parker, 
J.  B.  Varnum, 
Benjamin  Pickman, 
Thomas  Greenleaf, 
Daniel  Howard, 
Joseph  Locke, 
Nathan  Willis, 
Thomas  H.   Blood, 
Jonas  Sibley, 
Timothy  Paige, 
Bezaleel  Lawrence, 
Jones  Godfrey, 
Shepherd  Leach, 
Samuel  Dana. 


9,244  Nays. 
12,480      " 

8,412      " 
11,671      " 

Russell  Freeman, 
Varney  Pearce, 
Elihu  Hoyden, 
Samuel  Porter, 
Enos  Foote, 
George  Conant, 
josiah  hussey, 
Charles  Turner, 
John  Endicott, 
Benjamin  Russell, 
John  Phillips, 
William  Pearce, 
William  Bartlett. 
Charles  White. 


The  foregoing  report  having  been  submitted  to  the  Legislature, 
the  following  action  was  had : 

Commonwealth  of  Massachusetts. 

In  Senate,  May  30th,  1821. 
Read  and  committed  to  the  Hon.  Messrs.  Williams,  Shaw,  and 
Austin,  with  such  as  the  honorable  house  may  join,  to  consider 
and  report  in  what  manner  such  articles  as  have  been  adopted  by 
the  people,  shall  be  promulgated  and  made  known. 
Sent  down  for  concurrence. 

JOHN  PHILLIPS,  President. 

House  of  Representatives,  May  30th,  1821. 
Read  and  concurred,  and  Messrs.  Prescott  of  Boston,  Sprague 
of  Salem,  Lawrence  of  Groton,  Smead  of  Greenfield,  are  joined. 

JOSIAH  QUINCY,  Speaker. 

The  first  full  proceeding  of  the  Legislature  was  the  passage  of  a 
resolve,  approved  June  5th,  1821,  as  follows : 

RESOLVE 

For  publishing  the  Amendments  to  the  Constitution. 
Whereas  the  Convention  of  the   Delegates  of  the  people,  assem- 
bled at  Boston,   on  the  third  Wednesday  of  November,  in  the  year 
of  our  Lord   one  thousand  eight  hundred  and  twenty,  for  the  pur- 
pose  of  revising  and  amending  the  constitution  of  the  Common- 


636  APPENDIX. 

wealth,  pursuant  to  an  act  of  the  General  Court,  passed  on  the  six- 
teenth day  of  June,  in  the  year  aforesaid,  submitted  certain  articles 
of  amendment  of  the  constitution  to  the  people,  for  their  ratification 
and  adoption :  and  whereas  it  appears  by  a  certificate  of  the  com- 
mittee of  the  said  Convention,  that  the  following  articles  of  amend- 
ment, so  submitted  as  aforesaid,  have  been  ratified  and  adopted  by 
the  people,  in  the  manner  directed  by  the  said  Convention,  and 
have  thereby  become  a  part  of  the  constitution  of  this  Common- 
wealth, to  wit : 

ARTICLE    THE    FIRST. 

If  any  bill  or  resolve  shall  be  objected  to,  and  not  approved  by 
the  governor ;  and  if  the  General  Court  shall  adjourn  within  five 
days  after  the  same  shall  have  been  laid  before  the  governor  for  his 
approbation,  and  thereby  prevent  his  returning  it  with  his  objec- 
tions, as  provided  by  the  constitution  ;  such  bill  or  resolve  shall 
not  become  a  law,  nor  have  force  as  such. 

ARTICLE    THE     SECOND. 

The  General  Court  shall  have  full  power  and  authority  to  erect 
and  constitute  municipal  or  city  governments,  in  any  corporate 
town  or  towns  in  this  Commonwealth,  and  to  grant  to  the  inhab- 
itants thereof,  such  powers,  privileges  and  immunities,  not  repug- 
nant to  the  constitution,  as  the  General  Court  shall  deem  necessary 
or  expedient  for  the  regulation  and  government  thereof;  and  to 
prescribe  the  manner  of  calling  and  holding  public  meetings  of  the 
inhabitants,  in  wards  or  otherwise,  for  the  election  of  officers  under 
the  constitution,  and  the  manner  of  returning  the  votes  given  at 
such  meetings  :  Provided,  that  no  such  government  shall  be  erected 
or  constituted  in  any  town  not  containing  twelve  thousand  inhab- 
itants ;  nor  unless  it  be  with  the  consent,  and  on  the  application  of 
a  majority  of  the  inhabitants  of  such  town,  present  and  voting 
thereon,  pursuant  to  a  vote  at  a  meeting  duly  warned  and  holden 
for  that  purpose  :  and  provided  also,  that  all  by-laws,  made  by  such 
municipal  or  city  government,  shall  be  subject,  at  all  times,  to  be 
annulled  by  the  General  Court. 

ARTICLE    THE    THIRD. 

Every  male  citizen  of  twenty-one  years  of  age  and  upwards, 
(excepting  paupers  and  persons  under  guardianship)  who  shall  have 
resided  within  the  Commonwealth  one  year,  and  within  the  town 
or  district  in  which  he  may  claim  a  right  to  vote,  six  calendar 
months,  next  preceding  any  election  of  governor,  lieutenant  gov- 
ernor, senators  or  representatives,  and  who  shall  have  paid,  by  him- 
self or  his  parent,  master  or  guardian,  any  state  or  county  tax, 
which  shall,  within  two  years  next  preceding  such  election,  have 
been  assessed  upon  him  in  any  town  or  district  of  this  Common- 
wealth ;  and  also  every  citizen  who  shall  be  by  law  exempted  from 
taxation,  and  who  shall  be  in  all  other  respects  qualified  as  above 
mentioned,  shall  have  a  right  to  vote  in  such  election  of  governor, 
lieutenant  governor,  senators  and  representatives,  and  no  other  per- 
son shall  be  entitled  to  vote  in  such  elections. 


APPENDIX.  637 

ARTICLE    THE    FOURTH. 

Notaries  public  shall  be  appointed  by  the  governor,  in  the  same 
manner  as  judicial  officers  are  appointed,  and  shall  hold  their  offices 
during  seven  years,  unless  sooner  removed  by  the  governor,  with 
the  consent  of  the  council,  upon  the  address  of  both  houses  of  the 
Legislature. 

In  case  the  office  of  secretary  or  treasurer  of  the  Commonwealth 
shall  become  vacant  from  any  cause  during  the  recess  of  the 
General  Court,  the  governor,  with  the  advice  and  consent  of  the 
council,  shall  nominate  and  appoint,  under  such  regulations  as  may 
be  prescribed  by  law,  a  competent  and  suitable  person  to  such 
vacant  office,  who  shall  hold  the  same,  until  a  successor  shall  be 
appointed  by  the  General  Court. 

Whenever  the  exigencies  of  the  Commonwealth  shall  require  the 
appointment  of  a  commissary  general,  he  shall  be  nominated,  ap- 
pointed and  commissioned  in  such  manner  as  the  Legislature  may 
by  law  prescribe. 

All  officers  commissioned  to  command  in  the  militia,  may  be  re- 
moved from  office  in  such  manner  as  the  Legislature  may,  by  law, 
prescribe. 

ARTICLE    THE    FIFTH. 

In  the  elections  of  captains  and  subalterns  of  the  militia,  all  the 
members  of  their  respective  companies,  as  well  those  under,  as  those 
above  the  age  of  twenty-one  years,  shall  have  a  right  to  vote. 

ARTICLE    THE     SIXTH. 

Instead  of  the  oath  of  allegiance  prescribed  by  the  Constitution, 
the  following  oath  shall  be  taken  and  subscribed  by  every  person 
chosen  or  appointed  to  any  office,  civil  or  military,  under  the  gov- 
ernment of  this  Commonwealth,  before  he  shall  enter  upon  the  du- 
ties of  his  office,  to  wit : 

"  I,  A.  B.,  do  solemnly  swear  that  I  will  bear  true  faith  and  alle- 
giance to  the  Commonwealth  of  Massachusetts,  and  will  support  the 
constitution  thereof.     So  help  me  God." 

Provided,  that  when  any  person  shall  be  of  the  denomination 
called  Quakers,  and  shall  decline  taking  said  oath,  he  shall  make 
his  affirmation  in  the  foregoing  form,  omitting  the  word  "  swear  " 
and  inserting  instead  thereof  the  word  "  affirm,"  and  omitting  the 
words  "  So  help  me  God,"  and  subjoining  instead  thereof,  the 
words,   "  This  I  do,  under  the  pains  and  penalties  of  perjury." 

ARTICLE    THE    SEVENTH. 

No  oath,  declaration  or  subscription,  excepting  the  oath  prescribed 
in  the  preceding  article,  and  the  oath  of  office,  shall  be  required  of 
the  governor,  lieutenant  governor,  counsellors,  senators  or  represen- 
tatives, to  qualify  them  to  perform  the  duties  of  their  respective 
offices. 

ARTICLE    THE    EIGHTH. 

No  judge  of  any  court  in  this  Commonwealth,  (except  the  court 


638  APPENDIX. 

of  sessions)  and  no  person  holding  any  office  under  the  authority  of 
the  United  States,  (postmasters  excepted)  shall  at  the  same  time 
hold  the  office  of  governor,  lieutenant  governor  or  counsellor,  or 
have  a  seat  in  the  senate  or  house  of  representatives  of  this  Com- 
monwealth ;  and  no  judge  of  any  court  in  this  Commonwealth, 
(except  the  court  of  sessions)  nor  the  attorney  general,  solicitor 
general,  county  attorney,  clerk  of  any  court,  sheriff,  treasurer  and 
receiver  general,  register  of  probate,  nor  register  of  deeds,  shall  con- 
tinue to  hold  his  said  office  after  being  elected  a  member  of  the 
Congress  of  the  United  States  and  accepting  that  trust ;  but  the 
acceptance  of  such  trust,  by  any  of  the  officers  aforesaid,  shall  be 
deemed  and  taken  to  be  a  resignation  of  his  said  office  ;  and  judges 
of  the  courts  of  common  pleas  shall  hold  no  other  office  under  the 
government  of  this  Commonwealth,  the  office  of  justice  of  the  peace 
and  militia  offices  excepted. 

ARTICLE    THE    NINTH. 

If  at  any  time  hereafter  any  specific  and  particular  amendment  or 
amendments  to  the  constitution  be  proposed  in  the  General  Court, 
and  agreed  to  by  a  majority  of  the  senators  and  two  thirds  of  the 
members  of  the  house  of  representatives  present  and  voting  thereon  ; 
such  proposed  amendment  or  amendments  shall  be  entered  on  the 
journals  of  the  two  houses,  with  the  yeas  and  nays  taken  thereon, 
and  referred  to  the  General  Court  then  next  to  be  chosen,  and  shall 
be  published  ;  and  if,  in  the  General  Court  next  chosen  as  aforesaid, 
such  proposed  amendment  or  amendments  shall  be  agreed  to  by  a 
majority  of  the  senators  and  two  thirds  of  the  members  of  the  house 
of  representatives  present  and  voting  thereon,  then  it  shall  be  the 
duty  of  the  General  Court  to  submit  such  proposed  amendment  or 
amendments  to  the  people,  and  if  they  shall  be  approved  and 
ratified  by  a  majority  of  the  qualified  voters  voting  thereon,  at 
meetings  legally  warned  and  holden  for  that  purpose,  they  shall  be- 
come part  of  the  constitution  of  this  Commonwealth. 

Resolved,  That  the  above  recited  articles  of  amendment  shall  be 
enrolled  on  parchment,  and  deposited  in  the  secretary's  office  as  a 
part  of  the  constitution  and  fundamental  laws  of  this  Commonwealth, 
and  published  in  immediate  connection  therewith,  in  all  future  edi- 
tions of  the  laws  of  this  Commonwealth,  printed  by  public  author- 
ity. And  in  order  that  the  said  amendments  may  be  promulgated 
and  made  known  to  the  people  of  this  Commonwealth  without  de- 
lay, it  is  further 

Resolved,  That  his  excellency  the  governor  be,  and  he  hereby  is 
authorized  and  requested  to  issue  his  proclamation,  reciting  the  ar- 
ticles aforesaid  ;  announcing  that  the  same  have  been  duly  adopted 
and  ratified  by  the  people  of  this  Commonwealth,  and  become  a 
part  of  the  constitution  thereof ;  and  requiring  all  magistrates,  offi- 
cers civil  and  military,  and  all  the  citizens  of  this  Commonwealth, 
to  take  notice  thereof  and  govern  themselves  accordingly." 


APPENDIX.  639 


And  accordingly,  his  excellency  Governor  Brooks  issued  his 
proclamation  promulgating  the  amendments,  as  follows  : 

COMMONWEALTH  OF  MASSACHUSETTS. 

By  his  Excellency  John  Brooks,  Governor  of  the  Commonwealth 

of  Massachusetts. 

A     PR  O  C  LAMA  T I  ON 

For  promulgating  the  Amendments  to  the  Constitution. 

Whereas  sundry  resolutions  passed  the  Legislature  on  the  fifth 
day  of  June,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  twenty-one,  in  the  words  following,  viz. : 

[The  resolves  of  the  Legislature,  with  the  adopted  amendments, 
are  here  cited  in  the  proclamation.] 

Now,  therefore,  I,  John  Brooks,  Governor  of  the  Commonwealth 
of  Massachusetts,  by  virtue  of  the  authority  to  me  given  by  the 
resolution  last  above  written,  do  issue  this,  my  proclamation,  and  I 
do  hereby  announce,  that  the  several  articles  aforesaid  have  been 
duly  ratified  and  adopted  by  the  people  of  this  Commonwealth,  and 
have  become  a  part  of  the  constitution  thereof.  And  all  magistrates, 
officers,  civil  and  military,  and  all  the  citizens  of  the  Common- 
wealth, are  required  to  take  notice  thereof  and  govern  themselves 
accordingly. 

Given  at  the  council  chamber  at  Boston,  the  day  and  year  first 
above  written,  and  in  the  forty-fifth  year  of  the  independence  of 
the  United  States.  JOHN  BROOKS. 

By  his  Excellency  the  Governor. 
Alden  Bradford,   Secretary. 

God  save  the  Commonwealth  of  Massachusetts  ! 


640  APPENDIX. 


CONSTITUTION    OF  MASSACHUSETTS. 


PREAMBLE. 

The  end  of  the  institution,  maintenance  and  administration  of 
government,  is  to  secure  the  existence  of  the  body  politic  ;  to  protect 
it ;  and  to  furnish  the  individuals  who  compose  it  with  the  power 
of  enjoying,  in  safety  and  tranquillity,  their  natural  rights  and  the 
blessings  of  life  :  and  whenever  these  great  objects  are  not  obtained, 
the  people  have  a  right  to  alter  the  government,  and  to  take  meas- 
ures necessary  for  their  safety,  prosperity  and  happiness. 

The  body  politic  is  formed  by  a  voluntary  association  of  indi- 
viduals ;  it  is  a  social  compact,  by  which  the  whole  people  covenants 
with  each  citizen,  and  each  citizen  with  the  whole  people,  that  all 
shall  be  governed  by  certain  laws  for  the  common  good.  It  is  the 
duty  of  the  people,  therefore,  in  framing  a  constitution  of  govern- 
ment, to  provide  for  an  equitable  mode  of  making  laws,  as  well  as 
for  an  impartial  interpretation,  and  a  faithful  execution  of  them  ; 
that  every  man  may,  at  all  times,  find  his  security  in  them. 

We,  therefore,  the  people  of  Massachusetts,  acknowledging,  with 
grateful  hearts,  the  goodness  of  the  great  Legislator  of  the  universe 
in  affording  us,  in  the  course  of  his  providence,  an  opportunity,  de- 
liberately and  peaceably,  without  fraud,  violence  or  surprise,  of 
entering  into  an  original,  explicit,  and  solemn  compact  with  each 
other ;  and  of  forming  a  new  constitution  of  civil  government,  for 
ourselves  and  posterity  ;  and  devoutly  imploring  his  direction  in  so 
interesting  a  design,  do  agree  upon,  ordain  and  establish,  the  fol- 
lowing Declaration  of  Rights,  and  Frame  of  Government,  as  the 
Constitution  of  the  Commonwealth  of  Massachusetts. 


PART    THE  FIRST. 

A   Declaration  of  the  Bights  of  the  Inhabitants  of  the  Common- 
wealth of  Massachusetts. 

Art.  I.  All  men  are  born  free  and  equal,  and  have  certain  natural, 
essentia],  and  inalienable  rights;  among  which  maybe  reckoned 
the  right  of  enjoying  and  defending  their  lives  and  liberties ;  that 
of  acquiring,  possessing  and  protecting  property ;  in  fine,  that  of 
seeking  and  obtaining  their  safety  and  happiness. 

II.  It  is  the  right  as  well  as  the  duty  of  all  men  in  society,  pub- 
licly, and  at  stated  seasons,  to  worship  the  Supreme  Being,  the  great 
creator  and  preserver  of  the  universe.  And  no  subject  shall  be 
hurt,  molested,   or  restrained,  in  his  person,  liberty,  or  estate,  for 


APPENDIX.  641 

worshipping  God  in  the  manner  and  season  most  agreeable  to  the 
dictates  of  his  own  conscience ;  or  for  his  religious  profession  or 
sentiments ;  provided  he  doth  not  disturb  the  public  peace,  or  ob- 
struct others  in  their  religious  worship. 

III.  As  the  happiness  of  a  people,  and  the  good  order  and  pres- 
ervation of  civil  government,  essentially  depend  upon  piety,  religion 
and  morality  :  and  as  these  cannot  be  generally  diffused  through  a 
community,  but  by  the  institution  of  the  public  worship  of  God, 
and  of  public  instructions  in  piety,  religion  and  morality  :  therefore, 
to  promote  their  happiness,  and  to  secure  the  good  order  and  pres- 
ervation of  their  government,  the  people  of  this  Commonwealth 
have  a  right  to  invest  their  Legislature  with  power  to  authorize  and 
require,  and  the  Legislature  shall,  from  time  to  time,  authorize  and 
require,  the  several  towns,  parishes,  precincts,  and  other  bodies  pol- 
itic, or  religious  societies,  to  make  suitable  provision,  at  their  own 
expense,  for  the  institution  of  the  public  worship  of  God,  and  for 
the  support  and  maintenance  of  public  protestant  teachers  of  piety, 
religion  and  morality,  in  all  cases  where  such  provision  shall  not  be 
made  voluntarily. 

And  the  people  of  this  Commonwealth  have  also  a  right  to,  and 
do,  invest  their  Legislature  with  authority  to  enjoin  upon  all  the 
subjects  an  attendance  upon  the  instructions  of  the  public  teachers 
aforesaid,  at  stated  times  and  seasons,  if  there  be  any  on  whose  in- 
structions they  can  conscientiously  and  conveniently  attend. 

Provided,  notwithstanding,  that  the  several  towns,  parishes,  p*re- 
cincts,  and  other  bodies  politic,  or  religious  societies,  shall,  at  all 
times,  have  the  exclusive  right  of  electing  their  public  teachers,  and 
of  contracting  with  them  for  their  support  and  maintenance. 

And  all  moneys,  paid  by  the  subject  to  the  support  of  public  wor- 
ship, and  of  the  public  teachers  aforesaid,  shall,  if  he  require  it,  be 
uniformly  applied  to  the  support  of  the  public  teacher  or  teachers  of 
his  own  religious  sect  or  denomination,  provided  there  be  any  on 
whose  instructions  he  attends :  otherwise  it  may  be  paid  towards 
the  support  of  the  teacher  or  teachers  of  the  parish  or  precinct  in 
which  the  said  moneys  are  raised. 

And  every  denomination  of  Christians,  demeaning  themselves 
peaceably,  and  as  good  subjects  of  the  Commonwealth,  shall  be 
equally  under  the  protection  of  the  law  ;  and  no  subordination  of 
any  one  sect  or  denomination  to  another  shall  ever  be  established 
by  law. 

IY.  The  people  of  this  Commonwealth  have  the  sole  and  ex- 
clusive right  of  governing  themselves,  as  a  free,  sovereign,  and  inde- 
pendent state ;  and  do,  and  forever  hereafter  shall,  exercise  and 
enjoy  every  power,  jurisdiction,  and  right,  which  is  not,  or  may  not 
hereafter,  be  by  them  expressly  delegated  to  the  United  States  of 
America,  in  congress  assembled. 

V.     All  power  residing  originally  in  the  people,  and  being  derived 
from  them,  the  several  magistrates  and  officers  of  government,  vested 
81 


642  APPENDIX. 

with  authority,  whether  legislative,  executive,  or  judicial,  are  their 
substitutes  and  agents,  and  are  at  all  times  accountable  to  them. 

VI.  No  man,  nor  corporation,  or  association  of  men,  have  any- 
other  title  to  obtain  advantages,  or  particular  and  exclusive  privileges, 
distinct  from  those  of  the  community,  than  what  arises  from  the 
consideration  of  services  rendered  to  the  public  ;  and  this  title  being 
in  nature  neither  hereditary,  nor  transmissible  to  children,  or  de- 
scendants, or  relations  by  blood,  the  idea  of  a  man  being  born  a 
magistrate,  lawgiver,  or  judge,  is  absurd  and  unnatural. 

VII.  Government  is  instituted  for  the  common  good ;  for  the 
protection,  safety,  prosperity  and  happiness  of  the  people  ;  and  not 
for  the  profit,  honor,  or  private  interest  of  any  one  man,  family  or 
class  of  men :  therefore  the  people  alone  have  an  incontestible,  in- 
alienable, and  indefeasible  right  to  institute  government ;  and  to 
reform,  alter,  or  totally  change  the  same,  when  their  protection, 
safety,  prosperity  and  happiness  require  it. 

VIII.  In  order  to  prevent  those,  who  are  vested  with  authority, 
from  becoming  oppressors,  the  people  have  a  right,  at  such  periods 
and  in  such  maimer  as  they  shall  establish  by  their  frame  of  gov- 
ernment, to  cause  their  public  officers  to  return  to  private  life ;  and 
to  fill  up  vacant  places  by  certain  and  regular  elections  and  appoint- 
ments. 

IX.  All  elections  ought  to  be  free  ;  and  all  the  inhabitants  of 
this  Commonwealth,  having  such  qualifications  as  they  shall  estab- 
lish by  their  frame  of  government,  have  an  equal  right  to  elect  offi- 
cers, and  to  be  elected,  for  public  employments. 

X.  Each  individual  of  the  society  has  a  right  to  be  protected 
by  it  in  the  enjoyment  of  his  life,  liberty  and  property,  according  to 
standing  laws.  He  is  obliged,  consequently,  to  contribute  his  share 
to  the  expense  of  this  protection  :  to  give  his  personal  service,  or  an 
equivalent,  when  necessary ;  but  no  part  of  the  property  of  any 
individual,  can,  with  justice,  be  taken  from  him  or  applied  to  public 
uses  without  his  own  consent,  or  that  of  the  representative  body  of 
the  people.  In  fine,  the  people  of  this  Commonwealth  are  not  con- 
trollable by  any  other  laws,  than  those  to  which  their  constitutional 
representative  body  have  given  their  consent.  And  whenever  the 
public  exigencies  require  that  the  property  of  any  individual  should 
be  appropriated  to  public  uses,  he  shall  receive  a  reasonable  com- 
pensation therefor. 

XI.  Every  subject  of  the  Commonwealth  ought  to  find  a  cer- 
tain remedy,  by  having  recourse  to  the  laws,  for  all  injuries  or 
wrongs  which  he  may  receive  in  his  person,  property  or  character. 
He  ought  to  obtain  right  and  justice  freely,  and  without  being 
obliged  to  purchase  it ;  completely,  and  without  any  denial ; 
promptly  and  without  delay  ;  conformably  to  the  laws. 

XII.  No  subject  shall  be  held  to  answer  for  any  crimes  or  of- 
fence, until  the  same  is  fully  and  plainly,  substantially  and  formally, 
described  to  him ;  or  be  compelled  to  accuse,  or  furnish  evidence 
against  himself:  and  every  subject  shall  have  a  right  to  produce  all 


APPENDIX.  643 

proofs,  that  may  be  favorable  to  him :  to  meet  the  witnesses  against 
him  face  to  face,  and  to  be  fully  heard  in  his  defence  by  himself,  or 
his  counsel  at  his  election ;  and  no  subject  shall  be  arrested,  impris- 
oned, despoiled,  or  deprived  of  his  property,  immunities,  or  priv- 
ileges, put  out  of  the  protection  of  the  law,  exiled,  or  deprived  of 
his  life,  liberty,  or  estate,  but  by  the  judgment  of  his  peers,  or  the 
law  of  the  land. 

And  the  Legislature  shall  not  make  any  law  that  shall  subject 
any  person  to  a  capital  or  infamous  punishment,  excepting  for  the 
government  of  the  army  and  navy,  without  trial  by  jury. 

XIII.  In  criminal  prosecutions,  the  verification  of  facts  in  the 
vicinity  where  they  happen,  is  one  of  the  greatest  securities  of  the 
life,  liberty,  and  property  of  the  citizen. 

XIV.  Every  subject  has  a  right  to  be  secure  from  all  unreason- 
able searches  and  seizures  of  his  person,  his  houses,  his  papers,  and 
all  his  possessions.  All  warrants,  therefore,  are  contrary  to  this 
right,  if  the  cause  or  foundation  of  them  be  not  previously  supported 
by  oath  or  affirmation  ;  and  if  the  order  in  the  warrant  to  a  civil 
officer,  to  make  search  in  suspected  places,  or  to  arrest  one  or  more 
suspected  persons,  or  to  seize  their  property,  be  not  accompanied 
with  a  special  designation  of  the  persons  or  objects  of  search,  arrest, 
or  seizure  ;  and  no  warrant  ought  to  be  issued  but  in  cases,  and  with 
the  formalities,  prescribed  by  the  laws. 

XV.  In  all  controversies  concerning  property,  and  in  all  suits 
between  two  or  more  persons,  except  in  cases  in  which  it  has  here- 
tofore been  otherways  used  and  practised,  the  parties  have  a  right 
to  a  trial  by  jury ;  and  this  method  of  procedure  shall  be  held  sa- 
cred, unless,  in  causes  arising  on  the  high  seas,  and  such  as  relate 
to  mariners'  wages,  the  Legislature  shall  hereafter  find  it  necessary 
to  alter  it. 

XVI.  The  liberty  of  the  press  is  essential  to  the  security  of 
freedom  in  a  state  :  it  ought  not,  therefore,  to  be  restrained  in  this 
Commonwealth. 

XVII.  The  people  have  a  right  to  keep  and  to  bear  arms  for  the 
common  defence :  and  as,  in  time  of  peace,  armies  are  dangerous  to 
liberty,  they  ought  not  to  be  maintained  without  the  consent  of  the 
Legislature  ;  and  the  military  power  shall  always  be  held  in  an  ex- 
act  subordination  to  the  civil  authority,  and  be  governed  by  it. 

XVIII.  A  frequent  recurrence  to  the  fundamental  principles  of 
the  constitution,  and  a  constant  adherence  to  those  of  piety,  justice, 
moderation,  temperance,  industry,  and  frugality,  are  absolutely 
necessary  to  preserve  the  advantages  of  liberty,  and  to  maintain  a 
free  government.  The  people  ought,  consequently,  to  have  a  par- 
ticular attention  to  all  those  principles,  in  the  choice  of  their  officers 
and  representatives :  and  they  have  a  right  to  require  of  their  law- 
givers and  magistrates,  an  exact  and  constant  observance  of  them, 
in  the  formation  and  execution  of  the  laws  necessary  for  the  good 
administration  of  the  Commonwealth. 

XIX.  The  people  have   a  right,  in   an   orderly  and  peaceable 


644  APPENDIX. 

manner,  to  assemble  to  consult  upon  the  common  good ;  give  in- 
structions to  their  representatives  ;  and  to  request  of  the  legislative 
body,  by  the  way  of  addresses,  petitions,  or  remonstrances,  redress 
of  the  wrongs  done  them,  and  of  the  grievances  they  suffer. 

XX.  The  power  of  suspending  the  laws,  or  the  execution  of 
the  laws,  ought  never  to  be  exercised  but  by  the  Legislature,  or  by 
authority  derived  from  it,  to  be  exercised  in  such  particular  cases 
only  as  the  Legislature  shall  expressly  provide  for. 

XXI.  The  freedom  of  deliberation,  speech  and  debate,  in  either 
house  of  the  Legislature,  is  so  essential  to  the  rights  of  the  people, 
that  it  cannot  be  the  foundation  of  any  accusation  or  prosecution, 
action  or  complaint,  in  any  other  court  or  place  whatsoever. 

XXII.  The  Legislature  ought  frequently  to  assemble  for  the 
redress  of  grievances,  for  correcting,  strengthening,  and  confirming 
the  laws,  and  for  making  new  laws,  as  the  common  good  may 
require. 

XXIII.  No  subsidy,  charge,  tax,  impost,  or  duties,  ought  to  be 
established,  fixed,  laid,  or  levied,  under  any  pretext  whatsoever, 
without  the  consent  of  the   people,  or  their  representatives  in  the 


Legislature. 


XXIV.  Laws  made  to  punish  for  actions  done  before  the  exist- 
ence of  such  laws,  and  which  have  not  been  declared  crimes  by 
preceding  laws,  are  unjust,  oppressive,  and  inconsistent  with  the 
fundamental  principles  of  a  free  government. 

XXV.  No  subject  ought,  in  any  case,  or  in  any  time,  to  be  de- 
clared guilty  of  treason  or  felony  by  the  Legislature. 

XXVI.  No  magistrate  or  court  of  law  shall  demand  excessive 
bail  or  sureties,  impose  excessive  fines,  or  inflict  cruel  or  unusual 
punishments. 

XXVII.  In  time  of  peace,  no  soldier  ought  to  be  quartered  in 
any  house  without  the  consent  of  the  owner ;  and  in  time  of  war, 
such  quarters  ought  not  to  be  made  but  by  the  civil  magistrate,  in  a 
manner  ordained  by  the  Legislature. 

XXVIII.  No  person  can  in  any  case  be  subjected  to  law-martial, 
or  to  any  penalties  or  pains,  by  virtue  of  that  law,  except  those  em- 
ployed in  the  army  or  navy,  and  except  the  militia  in  actual  service, 
but  by  authority  of  the  Legislature. 

XXIX.  It  is  essential  to  the  preservation  of  the  rights  of  every 
individual,  his  life,  liberty,  property  and  character,  that  there  be  an 
impartial  interpretation  of  the  laws,  and  administration  of  justice. 
It  is  the  right  of  every  citizen  to  be  tried  by  judges  as  free,  impar- 
tial and  independent,  as  the  lot  of  humanity  will  admit.  It  is 
therefore  not  only  the  best  policy,  but  for  the  security  of  the  rights 
of  the  people,  and  of  every  citizen,  that  the  judges  of  the  supreme 
judicial  court  should  hold  their  offices  as  long  as  they  behave  them- 
selves well ;  and  that  they  should  have  honorable  salaries  ascer- 
tained and  established  by  standing  laws. 

XXX.  In  the  government  of  this  Commonwealth,  the  legisla- 
tive department  shall   never  exercise    the   executive  and  judicial 


APPENDIX.  645 

powers,  or  either  of  them :  the  executive  shall  never  exercise  the 
legislative  and  judicial  powers,  or  either  of  them-:  the  judicial  shall 
never  exercise  the  legislative  and  executive  powers,  or  either  of 
them  :  to  the  end  it  may  be  a  government  of  laws  and  not  of  men. 

PART  THE  SECOND. 
The  Frame  of  Government. 
The  people,  inhabiting  the  territory  formerly  called  the  Province 
of  Massachusetts  Bay,  do  hereby  solemnly  and  mutually  agree  with 
each  other,  to  form  themselves  into  a  free,  sovereign,  and  inde- 
pendent body  politic  or  state,  by  the  name  of  The  Commonwealth 
of  Massachusetts. 

CHAPTER  I. 

THE    LEGISLATIVE    POWER. 
SECTION   I. 

The   General  Court. 

Art.  I.  The  department  of  legislation  shall  be  formed  by  two 
branches,  a  Senate  and  House  of  Representatives :  each  of  which 
shall  have  a  negative  on  the  other. 

The  legislative  body  shall  assemble  every  year,  on  the  last 
Wednesday  in  May,  and  at  such  other  times  as  they  shall  judge 
necessary ;  and  shall  dissolve  and  be  dissolved  on  the  day  next  pre- 
ceding the  said  last  Wednesday  in  May ;  and  shall  be  styled  The 
General  Court  of  Massachusetts. 

II.  No  bill  or  resolve  of  the  senate  or  house  of  representatives 
shall  become  a  law,  and  have  force  as  such,  until  it  shall  have  been 
laid  before  the  governor  for  his  revisal :  and  if  he,  upon  such  re- 
vision, approve  thereof,  he  shall  signify  his  approbation  by  signing 
the  same.  But  if  he  have  any  objection  to  the  passing  of  such  bill 
or  resolve,  he  shall  return  the  same,  together  with  his  objections 
thereto,  in  writing,  to  the  senate  or  house  of  representatives,  in 
whichsoever  the  same  shall  have  originated :  who  shall  enter  the 
objections  sent  down  by  the  governor,  at  large,  on  their  records, 
and  proceed  to  reconsider  the  said  bill  or  resolve  :  but  if,  after  snch 
reconsideration,  two  thirds  of  the  said  senate  or  house  of  represen- 
tatives shall,  notwithstanding  the  said  objections,  agree  to  pass  the 
same,  it  shall,  together  with  the  objections,  be  sent  to  the  other 
branch  of  the  Legislature,  where  it  shall  also  be  reconsidered,  and  if 
approved  by  two  thirds  of  the  members  present,  shall  have  the  force 
of  a  law  :  but  in  all  such  cases,  the  votes  of  both  houses  shall  be 
determined  by  yeas  and  nays  ;  and  the  names  of  the  persons  voting 
for,  or  against,  the  said  bill  or  resolve,  shall  be  entered  upon  the 
public  records  of  the  Commonwealth. 

And  in  order  to  prevent  unnecessary  delays,  if  any  bill  or  resolve 
shall  not  be  returned  by  the  governor,  within  five  days  after  it  shall 
have  been  presented,  the  same  shall  have  the  force  of  a  law. 


646  APPENDIX. 

III.  The  General  Court  shall  forever  have  full  power  and  au- 
thority to  erect  ami  constitute  judicatories  and  courts  of  record,  or 
other  courts,  to  be  held  in  the  name  of  the  Commonwealth,  for  the 
hearing,  trying,  and  determining  of  all  manner  of  crimes,  offences, 
pleas,  processes,  plaints,  actions,  matters,  causes  and  things,  what- 
soever, arising  or  happening  within  the  Commonwealth,  or  between 
or  concerning  persons  inhabiting,  or  residing,  or  brought  within  the 
same  ;  whether  the  same  be  criminal  or  civil,  or  whether  the  said 
crimes  be  capital  or  not  capital,  and  whether  the  said  pleas  be  real, 
personal,  or  mixt;  and  for  the  awarding  and  making  out  of  execu- 
tion thereupon  :  to  which  courts  and  judicatories  are  hereby  given 
and  granted  full  power  and  authority,  from  time  to  time,  to  admin- 
ister oaths  or  affirmations,  for  the  better  discovery  of  truth  in  any 
matter  in  controversy,  or  depending  before  them. 

IV.  And  further,  full  power  and  authority  are  hereby  given  and 
granted  to  the  said  General  Court,  from  time  to  time,  to  make,  or- 
dain, and  establish,  all  manner  of  wholesome  and  reasonable  orders, 
laws,  statutes,  and  ordinances,  directions  and  instructions,  either 
with  penalties  or  without ;  so  as  the  same  be  not  repugnant  or  con- 
trary to  this  constitution,  as  they  shall  judge  to  be  for  the  good  and 
welfare  of  this  Commonwealth,  and  for  the  government  and  order- 
ing thereof,  and  of  the  subjects  of  the  same,  and  for  the  necessary 
support  and  defence  of  the  government  thereof;  and  to  name  and 
settle  annually,  or  provide  by  fixed  laws  for  the  naming  and  settling, 
all  civil  officers  within  the  said  Commonwealth,  the  election  and 
constitution  of  whom  are  not  hereafter  in  this  form  of  government 
otherwise  provided  for ;  and  to  set  forth  the  several  duties,  powers 
and  limits,  of  the  several  civil  and  military  officers  of  this  Common- 
wealth, and  the  forms  of  such  oaths  or  affirmations  as  shall  be  respect- 
ively administered  unto  them  for  the  execution  of  their  several 
offices  and  places,  so  as  the  same  be  not  repugnant  or  contrary  to  this 
constitution  ;  and  to  impose  and  levy  proportional  and  reasonable 
assessments,  rates,  and  taxes,  upon  all  the  inhabitants  of,  and  per- 
sons resident,  and  estates  lying,  within  the  said  Commonwealth : 
and  also  to  impose  and  levy  reasonable  duties  and  excises,  upon 
any  produce,  goods,  wares,  merchandise,  and  commodities  what- 
soever, brought  into,  produced,  manufactured,  or  being  within  the 
same ;  to  be  issued  and  disposed  of  by  warrant,  under  the  hand  of 
the  governor  of  this  Commonwealth  for  the  time  being,  with  the 
advice  and  consent  of  the  council,  for  the  public  service,  in  the 
necessary  defence  and  support  of  the  government  of  the  said  Com- 
monwealth, and  the  protection  and  preservation  of  the  subjects 
thereof,  according  to  such  acts  as  are  or  shall  be  in  force  within  the 
same. 

And  while  the  public  charges  of  government,  or  any  part  thereof, 
shall  be  assessed  on  polls  and  estates,  in  the  manner  that  has  hith- 
erto been  practised,  in  order  that  such  assessments  may  be  made 
with  equality,  there  shall  be  a  valuation  of  estates  within  the  Com- 
monwealth taken  anew  once  in  every  ten  years  at  least,  and  as 
much  oftener  as  the  General  Court  shall  order. 


APPENDIX.  647 


CHAPTER    I. 

SECTION   II. 
Senate. 

Art  I.  There  shall  be  annually  elected,  by  the  freeholders  and 
other  inhabitants  of  this  Commonwealth,  qualified  as  in  this  consti- 
tution is  provided,  forty  persons  to  be  counsellors  and  senators  for 
the  year  ensuing  their  election ;  to  be  chosen  by  the  inhabitants  of 
the  districts,  into  which  the  Commonwealth  may,  from  time  to  time, 
be  divided  by  the  General  Court  for  that  purpose  :  and  the  General 
Court,  in  assigning  the  numbers  to  be  elected  by  the  respective  dis- 
tricts, shall  govern  themselves  by  the  proportion  of  the  public  taxes 
paid  by  the  said  districts ;  and  timely  make  known  to  the  inhabit- 
ants of  the  Commonwealth,  the  limits  of  each  district,  and  the  num- 
ber of  counsellors  and  senators  to  be  chosen  therein  ;  provided,  that 
the  number  of  such  districts  shall  never  be  less  than  thirteen ;  and 
that  no  district  be  so  large  as  to  entitle  the  same  to  choose  more 
than  six  senators. 

And  the  several  counties  in  this  Commonwealth  shall,  until  the 
General  Court  shall  determine  it  necessary  to  alter  the  said  districts, 
be  districts  for  the  choice  of  counsellors  and  senators,  (except  that 
the  counties  of  Dukes  county  and  Nantucket  shall  form  one  district 
for  that  purpose)  and  shall  elect  the  following  number  for  counsel- 
lors and  senators,  viz. : 


Suffolk, 

six. 

York, 

two. 

Essex, 

six. 

Dukes  county 

and 

I 

Middlesex, 

five. 

Nantucket, 

s 

one. 

Hampshire, 

four. 

Worcester, 

five. 

Plymouth, 

three. 

Cumberland, 

one. 

Barnstable, 

one, 

Lincoln, 

one. 

Bristol, 

three. 

Berkshire, 

two. 

II.  The  senate  shall  be  the  first  branch  of  the  Legislature  ;  and 
the  senators  shall  be  chosen  in  the  following  manner,  viz.  :  there 
shall  be  a  meeting  on  the  first  Monday  in  April  annually,  forever, 
of  the  inhabitants  of  each  town  in  the  several  counties  of  this  Com- 
monwealth, to  be  called  by  the  selectmen,  and  warned  in  due 
course  of  law,  at  least  seven  days  before  the  first  Monday  in  April, 
for  the  purpose  of  electing  persons  to  be  senators  and  counsellors ; 
and  at  such  meetings  every  male  inhabitant  of  twenty-one  years  of 
age  and  upwards,  having  a  freehold  estate,  within  this  Common- 
wealth, of  the  annual  income  of  three  pounds,  or  any  estate  of  the 
value  of  sixty  pounds,  shall  have  a  right  to  give  in  his  vote  for  the 
senators  for  the  district  of  which  he  is  an  inhabitant.  And  to  re- 
move all  doubts  concerning  the  meaning  of  the  word  "  inhabitant," 
in  this  constitution,  every  person  shall  be  considered  as  an  inhabit- 
ant, for  the  purpose  of  electing  and  being  elected  into  any  office,  or 
place  within  this  State,  in  that  town,  district,  or  plantation,  where 
he  dwelleth,  or  hath  his  home. 

The  selectmen  of  the  several  towns  shall  preside  at  such  meet- 


648  APPENDIX. 

ings  impartially ;  and  shall  receive  the  votes  of  all  the  inhabitants 
of  such  towns  present  and  qualified  to  vote  for  senators,  and  shall 
sort  and  count  them  in  open  town  meeting,  and  in  presence  of  the 
town  clerk,  who  shall  make  a  fair  record,  in  presence  of  the  select- 
men, and  in  open  town  meeting,  of  the  name  of  every  person  voted 
for,  and  of  the  number  of  votes  against  his  name  ;  and  a  fair  copy  of 
this  record  shall  be  attested  by  the  selectmen  and  the  town  clerk, 
and  shall  be  sealed  up,  directed  to  the  secretary  of  the  Common- 
wealth for  the  time  being,  with  a  superscription,  expressing  the 
purport  of  the  contents  thereof,  and  delivered  by  the  town  clerk  of 
such  towns,  to  the  sheriff  of  the  county  in  which  such  town  lies, 
thirty  days  at  least  before  the  last  Wednesday  in  May  annually ;  or 
it  shall  be  delivered  into  the  secretary's  office  seventeen  days  at 
least  before  the  said  last  Wednesday  in  May ;  and  the  sheriff  of  each 
county  shall  deliver  all  such  certificates,  by  him  received,  into  the 
secretary's  office,  seventeen  days  before  the  said  last  Wednesday  in 
May. 

And  the  inhabitants  of  plantations  unincorporated,  qualified  as 
this  constitution  provides,  who  are  or  shall  be  empowered  and  re- 
quired to  assess  taxes  upon  themselves  toward  the  support  of  gov- 
ernment, shall  have  the  same  privilege  of  voting  for  counsellors  and 
senators,  in  the  plantations  where  they  reside,  as  town  inhabitants 
have  in  their  respective  towns ;  and  the  plantation  meetings  for  that 
purpose  shall  be  held  annually  on  the  same  first  Monday  in  April, 
at  such  place  in  the  plantations  respectively  as  the  assessors  thereof 
shall  direct ;  which  assessors  shall  have  like  authority  for  notifying 
the  electors,  collecting  and  returning  the  votes,  as  the  selectmen 
and  town  clerks  have  in  their  several  towns,  by  this  constitution. 
And  all  other  persons  living  in  places  unincorporated,  (qualified  as 
aforesaid)  who  shall  be  assessed  to  the  support  of  government  by 
the  assessors  of  an  adjacent  town,  shall  have  the  privilege  of  giving 
in  their  votes  for  counsellors  and  senators,  in  the  town  where  they 
shall  be  assessed,  and  be  notified  of  the  place  of  meeting  by  the  se- 
lectmen of  the  town  where  they  shall  be  assessed,  for  that  purpose, 
accordingly. 

III.  And  that  there  may  be  a  due  convention  of  senators  on  the 
last  Wednesday  in  May  annually,  the  governor,  with  five  of  the 
council  for  the  time  being,  shall,  as  soon  as  may  be,  examine  the 
returned  copies  of  such  records ;  and  fourteen  days  before  the  said 
day,  he  shall  issue  his  summons  to  such  persons  as  shall  appear  to 
be  chosen  by  a  majority  of  voters,  to  attend  on  that  day,  and  take 
their  seats  accordingly :  provided,  nevertheless,  that  for  the  first 
year,  the  said  returned  copies  shall  be  examined  by  the  president 
and  five  of  the  council  of  the  former  constitution  of  government ; 
and  the  said  president  shall,  in  like  manner,  issue  his  summons  to 
the  persons  so  elected,  that  they  may  take  their  seats  as  aforesaid. 

IV.  The  senate  shall  be  the  final  judge  of  the  elections,  returns, 
and  qualifications  of  their  own  members,  as  pointed  out  in  the  con- 
stitution ;  and  shall,  on  the  said  last  Wednesday  in  May  annually, 
determine  and  declare  who  are  elected  bv  each  district,  to  be  sena- 


APPENDIX.  649 

tors,  by  a  majority  of  votes :  and  in  case  there  shall  not  appear  to 
be  the  full  number  of  senators  returned  elected  by  a  majority  of 
votes  for  any  district,  the  deficiency  shall  be  supplied  in  the  follow- 
ing manner,  viz.  :  The  members  of  the  house  of  representatives, 
and  such  senators  as  shall  be  declared  elected,  shall  take  the  names 
of  such  persons  as  shall  be  found  to  have  the  highest  number  of 
votes  in  such  district,  and  not  elected,  amounting  to  twice  the  num- 
ber of  senators  wanting,  if  there  be  so  many  voted  for ;  and,  out  of 
these,  shall  elect  by  ballot  a  number  of  senators  sufficient  to  fill  up 
the  vacancies  in  such  district ;  and  in  this  manner  all  such  vacan- 
cies shall  be  filled  up  in  every  district  of  the  Commonwealth  ;  and 
in  like  manner  all  vacancies  in  the  senate,  arising  by  death,  removal 
out  of  the  State,  or  otherwise,  shall  be  supplied  as  soon  as  may  be 
after  such  vacancies  shall  happen. 

V.  Provided,  nevertheless,  that  no  person  shall  be  capable  of 
being  elected  as  a  senator,  who  is  not  seized  in  his  own  right  of  a 
freehold  within  this  Commonwealth,  of  the  value  of  three  hundred 
pounds  at  least,  or  possessed  of  personal  estate  to  the  value  of  six 
hundred  pounds  at  least,  or  of  both  to  the  amount  of  the  same  sum, 
and  who  has  not  been  an  inhabitant  of  this  Commonwealth,  for  the 
space  of  five  years  immediately  preceding  his  election,  and,  at  the 
time  of  his  election,  he  shall  be  an  inhabitant  in  the  district  for 
which  he  shall  be  chosen. 

VI.  The  senate  shall  have  power  to  adjourn  themselves,  pro- 
vided such  adjournments  do  not  exceed  two  days  at  a  time. 

VII.  The  senate  shall  choose  its  own  president,  appoint  its  own 
officers,  and  determine  its  own  rule  of  proceeding. 

VIII.  The  senate  shall  be  a  court  with  full  authority  to  hear 
and  determine  all  impeachments  made  by  the  house  of  representa- 
tives against  any  officer  or  officers  of  the  Commonwealth,  for  mis- 
conduct and  mal-administration  in  their  offices :  but,  previous  to  the 
trial  of  every  impeachment,  the  members  of  the  senate  shall  respec- 
tively be  sworn  truly  and  impartially  to  try  and  determine  the 
charge  in  question,  according  to  the  evidence.  Their  judgment, 
however,  shall  not  extend  further  than  to  removal  from  office  and 
disqualification  to  hold  or  enjoy  any  place  of  honor,  trust,  or  profit, 
under  this  Commonwealth :  but  the  party,  so  convicted,  shall  be, 
nevertheless,  liable  to  indictment,  trial,  judgment  and  punishment, 
according  to  the  laws  of  the  land. 

IX.  Not  less  than  sixteen  members  of  the  senate  shall  constitute 
a  quorum  for  doing  business. 


CHAPTER    I. 

SECTION  III. 
House  of  Representatives. 
Article   I.     There   shall   be,  in   the  Legislature  of  this  Com- 
monwealth, a  representation  of  the  people,  annually  elected,  and 
founded  upon  the  principle  of  equality. 
82 


650  APPENDIX. 

II.  And  in  order  to  provide  for  a  representation  of  the  citizens 
of  this  Commonwealth  founded  upon  the  principle  of  equality,  every 
corporate  town,  containing  one  hundred  and  fifty  ratable  polls,  may 
elect  one  representative  ;  every  corporate  town,  containing  three 
hundred  and  seventy -five  ratable  polls,  may  elect  two  representa- 
tives ;  every  corporate  town,  containing  six  hundred  ratable  polls, 
may  elect  three  representatives ;  and  proceeding  in  that  manner, 
making  two  hundred  and  twenty-five  ratable  polls  the  mean  increas- 
ing number  for  every  additional  representative. 

Provided,  nevertheless,  that  each  town  now  incorporated,  not 
having  one  hundred  and  fifty  ratable  polls,  may  elect  one  repre- 
sentative ;  but  no  place  shall  hereafter  be  incorporated  with  the 
privilege  of  electing  a  representative,  unless  there  are  within  the 
same  one  hundred  and  fifty  ratable  polls. 

And  the  house  of  representatives  shall  have  power,  from  time  to 
time,  to  impose  fines  upon  such  towns  as  shall  neglect  to  choose 
and  return  members  to  the  same,  agreeably  to  this  constitution. 

The  expenses  of  travelling  to  the  General  Assembly,  and  return- 
ning  home,  once  in  every  session,  and  no  more,  shall  be  paid  by 
the  government,  out  of  the  public  treasury,  to  every  member  who 
shall  attend  as  seasonably  as  he  can  in  the  judgment  of  the  house, 
and  does  not  depart  without  leave. 

III.  Every  member  of  the  house  of  representatives  shall  be 
chosen  by  written  votes ;  and,  for  one  year  at  least  next  preceding 
his  election,  shall  have  been  an  inhabitant  of,  and  have  been  seized 
in  his  own  right  of,  a  freehold  of  the  value  of  one  hundred  pounds, 
within  the  town  he  shall  be  chosen  to  represent,  or  any  ratable 
estate  to  the  value  of  two  hundred  pounds ;  and  he  shall  cease  to 
represent  the  said  town,  immediately  on  his  ceasing  to  be  qualified 
as  aforesaid. 

IV.  Every  male  person,  being  twenty-one  years  of  age,  and  res- 
ident in  any  particular  town  in  this  Commonwealth  for  the  space 
of  one  year  next  preceding,  having  a  freehold  estate  within  the 
same  town  of  the  annual  income  of  three  pounds,  or  any  estate  of 
the  value  of  sixty  pounds,  shall  have  a  right  to  vote  in  the  choice 
of  a  representative  or  representatives  for  the  said  town. 

V.  The  members  of  the  house  of  representatives  shall  be  chosen 
annually  in  the  month  of  May,  ten  days  at  least  before  the  last 
Wednesday  of  that  month. 

VI.  The  house  of  representatives  shall  be  the  grand  inquest  of 
this  Commonwealth ;  and  all  impeachments  made  by  them  shall  be 
heard  and  tried  by  the  senate. 

VII.  All  money  bills  shall  originate  in  the  house  of  representa- 
tives ;  but  the  senate  may  propose  or  concur  with  amendments,  as 
on  other  bills. 

VIII.  The  house  of  representatives  shall  have  power  to  adjourn 
themselves ;  provided  such  adjournment  shall  not  exceed  two  days 
at  a  time. 

IX.  Not  less  than  sixty  members  of  the  house  of  representa- 
tives shall  constitute  a  quorum  for  doing  business. 


APPENDIX.  651 

X.  The  house  of  representatives  shall  be  judge  of  the  returns, 
elections,  and  qualifications  of  its  own  members,  as  pointed  out  in 
the  constitution ;  shall  choose  their  own  speaker ;  appoint  theii 
own  officers,  and  settle  the  rules  and  orders  of  proceeding  in  their 
own  house.  They  shall  have  authority  to  punish  by  imprisonment, 
every  person,  not  a  member,  who  shall  be  guilty  of  disrespect  to 
the  house,  by  any  disorderly,  or  contemptuous  behavior,  in  its  pres- 
ence ;  or  who,  in  the  town  where  the  General  Court  is  sitting,  and 
during  the  time  of  its  sitting,  shall  threaten  harm  to  the  body  or 
estate  of  any  of  its  members,  for  anything  said  or  done  in  the  house  ; 
or  who  shall  assault  any  of  them  therefor ;  or  who  shall  assault,  or 
arrest,  any  witness,  or  other  person  ordered  to  attend  the  house,  in 
his  way  in  going,  or  returning  ;  or  who  shall  rescue  any  person  ar- 
rested by  the  order  of  the  house. 

And  no  member  of  the  house  of  representatives  shall  be  arrested, 
or  held  to  bail  on  mesne  process,  during  his  going  unto,  returning 
from,  or  his  attending,  the  General  Assembly. 

XI.  The  senate  shall  have  the  same  powers  in  the  like  cases  ; 
and  the  governor  and  council  shall  have  the  same  authority  to 
punish  in  like  cases :  provided,  that  no  imprisonment,  on  the  war- 
rant or  order  of  the  governor,  council,  senate,  or  house  of  represen- 
tatives, for  either  of  the  above  described  offences,  be  for  a  term  ex- 
ceeding thirty  days. 

And  the  senate  and  house  of  representatives  may  try,  and  deter- 
mine, all  cases  where  their  rights  and  privileges  are  concerned,  and 
which,  by  the  constitution,  they  have  authority  to  try  and  deter- 
mine, by  committees  of  their  own  members,  or  in  such  other  way 
as  they  may  respectively  think  best. 


CHAPTER  II. 

EXECUTIVE    POWER. 

SECTION   I. 

Governor. 

Art.  I.  There  shall  be  a  supreme  executive  magistrate,  who 
shall  be  styled,  The  Governor  of  the  Commonwealth  of  Massa- 
chusetts; and  whose  title  shall  be — His  Excellency. 

II.  The  governor  shall  be  chosen  annually  ;  and  no  person  shall 
be  eligible  to  this  office,  unless,  at  the  time  of  his  election,  he  shall 
have  been  an  inhabitant  of  this  Commonwealth  for  seven  years 
next  preceding ;  and  unless  he  shall,  at  the  same  time,  be  seized,  in 
his  own  right,  of  a  freehold  within  the  Commonwealth  of  the 
value  of  one  thousand  pounds ;  and  unless  he  shall  declare  himself 
to  be  of  the  Christian  religion. 

III.  Those  persons,  who  shall  be  qualified  to  vote  for  senators 
and  representatives,  within  the  several  towns  of  this  Common- 
wealth, shall,  at  a  meeting  to  be  called  for  that  purpose,  on  the 
first  Monday  of  April  annually,  give  in  their  votes  for  a  governor. 


652  APPENDIX. 

to  the  selectmen,  who  shall  preside  at  such  meetings ;  and  the  town 
clerk,  in  the  presence  and  with  the  assistance  of  the  selectmen, 
shall,  in  open  town  meeting,  sort  and  count  the  votes,  and  form  a 
list  of  the  persons  voted  for,  with  the  number  of  votes  for  each  per- 
son against  his  name  ;  and  shall  make  a  fair  record  of  the  same  in 
the  town  books,  and  a  public  declaration  thereof  in  the  said  meet- 
ing :  and  shall,  in  the  presence  of  the  inhabitants,  seal  up  copies  of 
the  said  list,  attested  by  him  and  the  selectmen,  and  transmit  the 
same  to  the  sheriff  of  the  county,  thirty  days  at  least  before  the 
last  Wednesday  in  May  :  and  the  sheriff  shall  transmit  the  same  to 
the  secretary's  office  seventeen  days  at  least  before  the  said  last 
Wednesday  in  May ;  or  the  selectmen  may  cause  returns  of  the 
same  to  be  made  to  the  office  of  the  secretary  of  the  Common- 
wealth seventeen  days  at  least  before  the  said  day ;  and  the  secre- 
tary shall  lay  the  same  before  the  senate  and  the  house  of  represen- 
tatives, on  the  last  Wednesday  in  May,  to  be  by  them  examined  ; 
and  in  case  of  an  election  by  a  majority  of  all  the  votes  returned, 
the  choice  shall  be  by  them  declared  and  published  ;  but  if  no  per- 
son shall  have  a  majority  of  votes,  the  house  of  representatives  shall, 
by  ballot,  elect  two  out  of  four  persons,  who  had  the  highest  num- 
ber of  votes,  if  so  many  shall  have  been  voted  for ;  but,  if  other- 
wise, out  of  the  number  voted  for ;  and  make  return  to  the  senate 
of  the  two  persons  so  elected ;  on  which,  the  senate  shall  proceed, 
by  ballot,  to  elect  one,  who  shall  be  declared  governor. 

IV.  The  governor  shall  have  authority,  from  time  to  time,  at 
his  discretion,  to  assemble  and  call  together  the  counsellors  of  this 
Commonwealth  for  the  time  being  ;  and  the  governor,  with  the  said 
counsellors,  or  five  of  them  at  least,  shall,  and  may,  from  time  to 
time,  hold  and  keep  a  council,  for  the  ordering  and  directing  the 
affairs  of  the  Commonwealth,  agreeably  to  the  constitution  and  the 
laws  of  the  land. 

V.  The  governor,  with  advice  of  council,  shall  have  full  power 
and  authority,  during  the  session  of  the  General  Court,  to  adjourn  or 
prorogue  the  same  to  any  time  the  two  houses  shall  desire  ;  and  to 
dissolve  the  same  on  the  day  next  preceding  the  last  Wednesday  in 
May ;  and,  in  the  recess  of  the  said  court,  to  prorogue  the  same 
from  time  to  time,  not  exceeding  ninety  days  in  any  one  recess; 
and  to  call  it  together  sooner  than  the  time  to  which  it  may  be  ad- 
journed or  prorogued,  if  the  welfare  of  the  Commonwealth  shall 
require  the  same  ;  and  in  case  of  any  infectious  distemper  prevail- 
ing in  the  place  where  the  said  court  is  next  at  any  time  to  con- 
vene, or  any  other  cause  happening  whereby  danger  may  arise  to 
the  health  or  lives  of  the  members  from  their  attendance,  he  may 
direct  the  session  to  be  held  at  some  other  the  most  convenient 
place  within  the  State. 

And  the  governor  shall  dissolve  the  said  General  Court  on  the 
day  next  preceding  the  last  Wednesday  in  May. 

VI.  In  cases  of  disagreement  between  the  two  houses,  with  re- 
gard to  the  necessity,  expediency  or  time  of  adjournment,  or  pro- 


APPENDIX  653 

rogation,  the  governor,  with  advice  of  the  council,  shall  have  a 
right  to  adjourn  or  prorogue  the  General  Court,  not  exceeding 
ninety  days,  as  he  shall  determine  the  public  good  shall  require. 

VII.     The  governor  of  this  Commonwealth,  for  the  time  being, 
shall  be  the  commander  in  chief  of  the  army  and  navy,  and  of  all 
the  military  forces  of  the  State,  by  sea  and   land ;  and  shall   have 
full  power,  by  himself,  or  by  any  commander,  or  other  officer  or  offi- 
cers, from  time  to  time,  to  train,  instruct,  exercise  and  govern   the 
militia  and  navy;  and,  for  the  special  defence  and  safety  of  the 
Commonwealth,  to  assemble  in  martial  array,  and  put   in  warlike 
posture,  the  inhabitants  thereof,  and  to  lead  and  conduct  them,  and 
with  them,  to  encounter,  repel,  resist,  expel  and  pursue,  by  force  of 
arms,  as  well  by  sea  as  by  land,  Avithin   or  without  the  limits   of 
this  Commonwealth,  and  also  to  kill,  slay  and  destroy,  if  necessary, 
and  conquer,  by  all  fitting  ways,  enterprises  and  means  whatsoever, 
all  and  every  such  person  and  persons  as  shall,  at  any  time  here- 
after, in  a  hostile  manner,  attempt  or  enterprise   the  destruction,  in- 
vasion, detriment,  or  annoyance  of  this  Commonwealth  ;  and  to  use 
and  exercise,  over  the  army  and  navy,  and  over  the  militia  in  actual 
service,  the  law  martial,  in  time  of  war  or  invasion,  and  also  in  time 
of  rebellion,  declared  by  the  Legislature  to  exist,  as  occasion   shall 
necessarily  require  ;  and  to  take  and  surprise  by  all  ways  and  means 
whatsoever,  all  and  every  such  person  or  persons,  with  their  ships, 
arms,  ammunition  and  other  goods,  as  shall  in  a  hostile   manner  in- 
vade, or  attempt  the   invading,  conquering,  or  annoying  this  Com- 
monweal th ;  and  that  the  governor  be  intrusted  with  all  these  and 
other  powers,  incident  to  the  offices  of  captain  general  and  com- 
mander in  chief,  and  admiral,  to  be  exercised  agreeably  to  the  rules 
and  regulations  of  the   constitution,  and   the  laws  of  the  land,  and 
not  otherwise. 

Provided,  that  the  said  governor  shall  not,  at  any  time  hereafter, 
by  virtue  of  any  power  by  this  constitution  granted,  or  hereafter  to 
be  granted  to  him  by  the  Legislature,  transport  any  of  the  inhabit- 
ants of  this  Commonwealth,  or  oblige  them  to  march  out  of  the  limits 
of  the  same,  without  their  free  and  voluntary  consent,  or  the  con- 
sent of  the  General  Court ;  except  so  far  as  may  be  necessary  to 
march  or  transport  them  by  land  or  water,  for  the  defence  of  such 
part  of  the  State  to  which  they  cannot  otherwise  conveniently  have 
access. 

VIII.  The  power  of  pardoning  offences,  except  such  as  persons 
may  be  convicted  of  before  the  senate,  by  an  impeachment  of  the 
house,  shall  be  in  the  governor,  by  and  with  the  advice  of  council ; 
but  no  charter  of  pardon,  granted  by  the  governor  with  advice  of 
the  council,  before  conviction,  shall  avail  the  party  pleading  the 
same,  notwithstanding  any  general  or  particular  expressions  con- 
tained therein,  descriptive  of  the  offence,  or  offences  intended  to  be 
pardoned. 

IX.  All  judicial  officers,  the  attorney  general,  the  solicitor  gen- 
eral, all   sheriffs,   coroners,   and  registers  of  probate,  shall  be  nom- 


654  APPENDIX. 

inated  and  appointed  by  the  governor,  by  and  with  the  advice  and 
consent  of  the  council ;  and  every  such  nomination  shall  be  made 
by  the  governor,  and  made  at  least  seven  days  prior  to  such  appoint- 
ment. 

X.  The  captains  and  subalterns  of  the  militia  shall  be  elected 
by  the  written  votes  of  the  train  band  and  alarm  list  of  their  re- 
spective companies,  of  twenty-one  years  of  age  and  upwards ;  the 
field  officers  of  regiments  shall  be  elected  by  the  written  votes  of 
the  captains  and  subalterns  of  their  respective  regiments ;  the  brig- 
adiers shall  be  elected  in  like  manner,  by  the  field  officers  of  their 
respective  brigades  ;  and  such  officers,  so  elected,  shall  be  commis- 
sioned by  the  governor,  who  shall  determine  their  rank. 

The  Legislature  shall,  by  standing  laws,  direct  the  time  and  man- 
ner of  convening  the  electors,  and  of  collecting  votes,  and  of  certi- 
fying to  the  governor  the  officers  elected. 

The  major  generals  shall  be  appointed  by  the  senate  and  house 
of  representatives,  each  having  a  negative  upon  the  other ;  and  be 
commissioned  by  the  governor. 

And  if  the  electors  of  brigadiers,  field  officers,  captains  or  subal- 
terns, shall  neglect  or  refuse  to  make  such  elections,  after  being 
duly  notified,  according  to  the  laws  for  the  time  being,  then  the 
governor,  with  advice  of  council,  shall  appoint  suitable  persons  to 
fill  such  offices. 

And  no  officer,  duly  commissioned  to  command  in  the  militia, 
shall  be  removed  from  his  office,  but  by  the  address  of  both  houses 
to  the  governor,  or  by  fair  trial  in  court  martial,  pursuant  to  the  laws 
of  the  Commonwealth  for  the  time  being. 

The  commanding  officers  of  regiments  shall  appoint  their  adju- 
tants and  quarter  masters  ;  the  brigadiers  their  brigade  majors  ;  and 
the  major  generals  their  aids ;  and  the  governor  shall  appoint  the 
adjutant  general. 

The  governor,  with  advice  of  council,  shall  appoint  all  officers  of 
the  continental  army,  whom  by  the  confederation  of  the  United 
States  it  is  provided  that  this  Commonwealth  shall  appoint, — as 
also  all  officers  of  forts  and  garrisons. 

The  divisions  of  the  militia  into  brigades,  regiments  and  compa- 
nies, made  in  pursuance  of  the  militia  laws  now  in  force,  shall  be 
considered  as  the  proper  divisions  of  the  militia  of  this  Common- 
wealth until  the  same  shall  be  altered  in  pursuance  of  some  future 
law. 

XI.  No  moneys  shall  be  issued  out  of  the  treasury  of  this  Com- 
monwealth and  disposed  of  (except  such  sums  as  may  be  appropri- 
ated for  the  redemption  of  bills  of  credit  or  treasurer's  notes,  or  for 
the  payment  of  interest  arising  thereon)  but  by  warrant  under  the 
hand  of  the  governor  for  the  time  being,  with  the  advice  and  con- 
sent of  the  council,  for  the  necessary  defence  and  support  of  the 
Commonwealth ;  and  for  the  protection  and  preservation  of  the  in- 
habitants thereof,  agreeably  to  the  acts  and  resolves  of  the  General 
Court. 


APPENDIX. 


G55 


XII.  All  public  boards,  the  commissary  general,  all  superintend- 
ing officers  of  public  magazines  and  stores,  belonging  to  this  Com- 
monwealth, and  all  commanding  officers  of  forts  and  garrisons 
within  the  same,  shall,  once  in  every  three  months,  officially  and 
without  requisition,  and  at  other  times  when  required  by  the  gov- 
ernor, deliver  to  him  an  account  of  all  goods,  stores,  provisions,  am- 
munition, cannon  with  their  appendages,  and  small  arms  with  their 
accoutrements,  and  of  all  other  public  property  whatever  under 
their  care  respectively  ;  distinguishing  the  quantity,  number,  quality 
and  kind  of  each,  as  particularly  as  may  be  ;  together  with  the  con- 
dition of  such  forts  and  garrisons ;  and  the  said  commanding  officer 
shall  exhibit  to  the  governor,  when  required  by  him,  true  and  exact 
plans  of  such  forts,  and  of  the  land  and  sea,  or  harbor  or  harbors, 
adjacent. 

And  the  said  boards,  and  all  public  officers,  shall  communicate  to 
the  governor,  as  soon  as  may  be  after  receiving  the  same,  all  letters, 
dispatches,  and  intelligences  of  a  public  nature,  which  shall  be  di- 
rected to  them  respectively. 

XIII.  As  the  public  good  requires  that  the  governor  should  not 
be  under  the  undue  influence  of  any  of  the  members  of  the  General 
Court,  by  a  dependence  on  them  for  his  support — that  he  should,  in 
all  cases,  act  with  freedom  for  the  benefit  of  the  public — that  he 
should  not  have  his  attention  necessarily  diverted  from  that  object 
to  his  private  concerns — and  that  he  should  maintain  the  dignity  of 
the  Commonwealth  in  the  character  of  its  chief  magistrate — it  is 
necessary  that  he  should  have  an  honorable  stated  salary,  of  a  fixed 
and  permanent  value,  amply  sufficient  for  those  purposes,  and  es- 
tablished by  standing  laws :  and  it  shall  be  among  the  first  acts  of 
the  General  Court,  after  the  commencement  of  this  constitution,  to 
establish  such  salary  by  law  accordingly. 

Permanent  and  honorable  salaries  shall  also  be  established  by  law 
for  the  justices  of  the  supreme  judicial  court. 

And  if  it  shall  be  found,  that  any  of  the  salaries  aforesaid,  so  es- 
tablished, are  insufficient,  they  shall,  from  time  to  time,  be  enlarged, 
as  the  General  Court  shall  judge  proper. 


CHAPTER   II. 

SECTION  II. 
Lieutenant   Governor. 

Art.  I.  There  shall  be  annually  elected  a  lieutenant  governor  of 
the  Commonwealth  of  Massachusetts,  whose  title  shall  be  His 
Honor — and  who  shall  be  qualified,  in  point  of  religion,  property, 
and  residence  in  the  Commonwealth,  in  the  same  manner  with  the 
governor  ;  and  the  day  and  manner  of  his  election,  and  the  quali- 
fications of  the  electors,  shall  be  the  same  as  are  required  in^  the 
election  of  a  governor.  The  return  of  the  votes  for  this  officer, 
and  the  declaration  of  his  election,  shall  be  in  the  same  manner  ; 


656  APPENDIX. 

and  if  no  one  person  shall  be  found  to  have  a  majority  of  all  the 
votes  returned,  the  vacancy  shall  be  filled  by  the  senate  and  house 
of  representatives,  in  the  same  manner  as  the  governor  is  to  be 
elected,  in  case  no  one  person  shall  have  a  majority  of  the  votes  of 
the  people  to  be  governor. 

II.  The  governor,  and  in  his  absence  the  lieutenant  governor, 
shall  be  president  of  the  council,  but  shall  have  no  vote  in  council ; 
and  the  lieutenant  governor  shall  always  be  a  member  of  the  coun- 
cil, except  when  the  chair  of  the  governor  shall  be  vacant. 

III.  Whenever  the  chair  of  the  governor  shall  be  vacant,  by 
reason  of  his  death,  or  absence  from  the  Commonwealth,  or  other- 
wise, the  lieutenant  governor,  for  the  time  being,  shall,  during  such 
vacancy,  perform  all  the  duties  incumbent  upon  the  governor,  and 
shall  have  and  exercise  all  the  powers  and  authorities,  which  by 
this  constitution  the  governor  is  vested  with,  when  personally  pres- 
ent. 


CHAPTER    II. 

SECTION    III. 
Council,  and  the  manner  of  settling  elections  by  the  Legislature. 

Art.  I.  There  shall  be  a  council  for  advising  the  governor  in 
the  executive  part  of  the  government,  to  consist  of  nine  persons  be- 
sides the  lieutenant  governor,  whom  the  governor  for  the  time 
being  shall  have  full  power  and  authority,  from  time  to  time,  at 
his  discretion,  to  assemble  and  call  together ;  and  the  governor, 
with  the  said  counsellors,  or  five  of  them  at  least,  shall  and  may, 
from  time  to  time,  hold  and  keep  a  council,  for  the  ordering  and 
directing  the  affairs  of  the  Commonwealth,  according  to  the  laws 
of  the  land. 

II.  Nine  counsellors  shall  be  annually  chosen  from  among  the 
persons  returned  for  counsellors  and  senators,  on  the  last  Wednes- 
day in  May,  by  the  joint  ballot  of  the  senators  and  representatives 
assembled  in  one  room ;  and  in  case  there  shall  not  be  found,  upon 
the  first  choice,  the  whole  number  of  nine  persons  who  will  ac- 
cept a  seat  in  the  council,  the  deficiency  shall  be  made  up  by  the 
electors  aforesaid  from  among  the  people  at  large ;  and  the  number 
of  senators  left  shall  constitute  the  senate  for  the  year.  The  seats 
of  the  persons  thus  elected  from  the  senate,  and  accepting  the  trust, 
shall  be  vacated  in  the  senate. 

III.  The  counsellors,  in  the  civil  arrangements  of  the  Common- 
wealth, shall  have  rank  next  after  the  lieutenant  governor. 

IV.  Not  more  than  two  counsellors  shall  be  chosen  out  of  any 
one  district  of  this  Commonwealth. 

V.  The  resolutions  and  advice  of  the  council  shall  be  recorded 
in  a  register,  and  signed  by  the  members  present :  and  this  record 
may  be  called  for  at  any  time  by  either  house  of  the  Legislature  ; 
and  any  member  of  the  council  may  insert  his  opinion  contrary  to 
the  resolution  of  the  majority. 


APPENDIX.  657 

VI.  Whenever  the  office  of  the  governor  and  lieutenant  gov- 
ernor shall  be  vacant,  by  reason  of  death,  absence,  or  otherwise, 
then  the  council,  or  the  major  part  of  them,  shall,  during  such  va- 
cancy, have  full  power  and  authority  to  do,  and  execute,  all  and 
every  such  acts,  matters  and  things,  as  the  governor  or  the  lieuten- 
ant governor  might  or  could,  by  virtue  of  this  constitution,  do  or 
execute,  if  they,  or  either  of  them,  were  personally  present. 

VII.  And  whereas  the  elections  appointed  to  be  made  by  this 
constitution,  on  the  last  Wednesday  in  May  annually,  by  the  two 
houses  of  the  Legislature,  may  not  be  completed  on  that  day,  the 
said  elections  may  be  adjourned  from  day  to  day  until  the  same 
shall  be  completed :  And  the  order  of  elections  shall  be  as  follows  : 
the  vacancies  in  the  senate,  if  any,  shall  first  be  filled  up ;  the  gov- 
ernor and  lieutenant  governor  shall  then  be  elected,  provided  there 
should  be  no  choice  of  them  by  the  people  ;  and  afterwards  the 
two  houses  shall  proceed  to  the  election  of  the  council. 


CHAPTER    II. 

SECTION   IV. 
Secretary,  Treasurer,  Commissary,  fyc. 

Art.  I.  The  secretary,  treasurer  and  receiver  general,  and  the 
commissary  general,  notaries  public,  and  naval  officers,  shall  be 
chosen  annually  by  joint  ballot  of  the  senators  and  representatives 
in  one  room ;  and,  that  the  citizens  of  this  Commonwealth  may  be 
assured,  from  time  to  time,  that  the  moneys  remaining  in  the  pub- 
lic treasury,  upon  the  settlement  and  liquidation  of  the  public  ac- 
counts, are  their  property,  no  man  shall  be  eligible  as  treasurer  and 
receiver  general  more  than  five  years  successively. 

II.  The  records  of  the  Commonwealth  shall  be  kept  in  the  of- 
fice of  the  secretary,  who  may  appoint  his  deputies,  for  whose  con- 
duct he  shall  be  accountable,  and  he  shall  attend  the  governor  and 
council,  the  senate  and  house  of  representatives,  in  person,  or  by 
his  deputies,  as  they  shall  respectively  require. 


CHAPTER    III. 

JUDICIARY    POWER. 

Art.  I.  The  tenure,  that  all  commission  officers  shall  by  law 
have  in  their  offices,  shall  be  expressed  in  their  respective  commis- 
sions. All  judicial  officers,  duly  appointed,  commissioned  and 
sworn,  shall  hold  their  offices  during  good  behavior,  excepting  such 
concerning  whom  there  is  different  provision  made  in  this  consti- 
tution :  provided,  nevertheless,  the  governor,  with  consent  of  the 
council,  may  remove  them  upon  the  address  of  both  houses  of  the 
Legislature. 

II.  Each  branch  of  the  Legislature,  as  well  as  the  governor  and 
council,  shall  have  authority  to  require  the  opinions  of  the  justices 
83 


658  APPENDIX. 

of  the  supreme  judicial  court,  upon  important  questions  of  law,  and 
upon  solemn  occasions. 

III.  In  order  that  the  people  may  not  suffer  from  the  long  con- 
tinuance in  place  of  any  justice  of  the  peace,  who  shall  fail  of  dis- 
charging the  important  duties  of  his  office  with  ability  or  fidelity, 
all  commissions  of  justices  of  the  peace  shall  expire  and  become 
void,  in  the  term  of  seven  years  from  their  respective  dates  ;  and, 
upon  the  expiration  of  any  commission,  the  same  may,  if  necessary, 
be  renewed,  or  another  person  appointed,  as  shall  most  conduce  to 
the  well  being  of  the  Commonwealth. 

IV.  The  judges  of  probate  of  wills,  and  for  granting  letters  of 
administration,  shall  hold  their  courts  at  such  place  or  places,  on 
fixed  days,  as  the  convenience  of  the  people  shall  require  ;  and  the 
Legislature  shall,  from  time  to  time  hereafter,  appoint  such  times 
and  places ;  until  such  appointments,  the  said  courts  shall  be  holden 
at  the  times  and  places  which  the  respective  judges  shall  direct. 

Y.  All  causes  of  marriage,  divorce  and  alimony,  and  all  appeals 
from  the  judges  of  probate,  shall  be  heard  and  determined  by  the 
governor  and  council,  until  the  Legislature  shall,  by  law,  make 
other  provision. 


CHAPTER  IV. 

DELEGATES    TO    CONGRESS. 

The  delegates  of  this  Commonwealth  to  the  Congress  of  the 
United  States  shall,  sometime  in  the  month  of  June  annually,  be 
elected  by  the  joint  ballot  of  the  senate  and  house  of  representatives, 
assembled  together  in  one  room ;  to  serve  in  Congress  for  one  year, 
to  commence  on  the  first  Monday  in  November  then  next  ensuing. 
They  shall  have  commissions  under  the  hand  of  the  governor,  and 
the  great  seal  of  the  Commonwealth ;  but  may  be  recalled  at  any 
time  within  the  year,  and  others  chosen  and  commissioned,  in  the 
same  manner,  in  their  stead. 


CHAPTER  V. 

THE    UNIVERSITY    AT    CAMBRIDGE,    AND    ENCOURAGEMENT    OP 
LITERATURE,   ETC. 

SECTION  I. 
The  University. 
Art.  I.  Whereas  our  wise  and  pious  ancestors,  so  early  as  the 
year  one  thousand  six  hundred  and  thirty-six,  laid  the  foundation  of 
Harvard  College,  in  which  university  many  persons  of  great  emi- 
nence have,  by  the  blessing  of  God,  been  initiated  in  those  arts  and 
sciences  which  qualified  them  for  public  employments,  both  in 
church  and  state ;  and  whereas  the  encouragement  of  arts  and  sci- 
ences, and  all  good  literature,  tends  to  the  honor  of  God,  the  ad- 
vantage of  the  Christian  religion,  and  the  great  benefit  of  this,  and 
the  other  United  States  of  America — it  is  declared,  that  the  Pre  si- 


APPENDIX.  659 

dent  and  Fellows  of  Harvard  Coeleoe,  in  their  corporate  capac- 
ity, and  their  successors  in  that  capacity,  their  officers  and  servants, 
shall  have,  hold,  use,  exercise  and  enjoy,  all  the  powers,  authorities, 
rights,  liberties,  privileges,  immunities  and  franchises,  which  they 
now  have,  or  are  entitled  to  have,  hold,  use,  exercise  and  enjoy ; 
and  the  same  are  hereby  ratified  and  confirmed  unto  them,  the  said 
President  and  Fellows  of  Harvard  College,  and  to  their  successors, 
and  to  their  officers  and  servants,  respectively,  forever. 

II.  And  whereas  there  have  been,  at  sundry  times,  by  divers 
persons,  gifts,  grants,  devises  of  houses,  lands,  tenements,  goods, 
chattels,  legacies  and  conveyances,  heretofore  made,  either  to  Har- 
vard College  in  Cambridge,  in  New  England,  or  to  the  President 
and  Fellows  of  Harvard  College,  or  to  the  said  College,  by  some 
other  description,  under  several  charters  successively ;  it  is  declared, 
that  all  the  said  gifts,  grants,  devises,  legacies  and  conveyances,  are 
hereby  forever  confirmed  unto  the  President  and  Fellows  of  Har- 
vard College,  and  to  their  successors,  in  the  capacity  aforesaid, 
according  to  the  true  intent  and  meaning  of  the  donor  or  donors, 
grantor  or  grantors,  devisor  or  devisors. 

III.  And  whereas  by  an  act  of  thus  General  Court  of  the  Colony 
of  Massachusetts  Bay,  passed  in  the  year  one  thousand  six  hundred 
and  forty-two,  the  governor  and  deputy  governor,  for  the  time  be- 
ing, and  all  the  magistrates  of  that  jurisdiction,  were,  with  the 
President,  and  a  number  of  the  clergy  in  the  said  act  described, 
constituted  the  Overseers  of  Harvard  College  ;  and  it  being  neces- 
sary, in  this  new  constitution  of  government,  to  ascertain  who  shall 
be  deemed  successors  to  the  said  governor,  deputy  governor,  and 
magistrates ;  it  is  declared,  that  the  governor,  lieutenant  governor, 
council  and  senate  of  this  Commonwealth,  are,  and  shall  be  deemed, 
their  successors;  who,  with  the  President  of  Harvard  College,  for 
the  time  being,  together  with  the  ministers  of  the  Congregational 
churches  in  the  towns  of  Cambridge,  Watertown,  Charlestown,  Bos- 
ton, Roxbury,  and  Dorchester,  mentioned  in  the  said  act,  shall  be, 
and  hereby  are,  vested  with  all  the  powers  and  authority  belonging, 
or  in  any  way  appertaining  to  the  Overseers  of  Harvard  College  ; 
provided,  that  nothing  herein  shall  be  construed  to  prevent  the 
Legislature  of  this  Commonwealth  from  making  such  alterations  in 
the  government  of  the  said  University,  as  shall  be  conducive  to  its 
advantage,  and  the  interest  of  the  republic  of  letters,  in  as  full  a 
manner  as  might  have  been  done  by  the  Legislature  of  the  late 
Province  of  the  Massachusetts  Bay. 


CHAPTER  V. 

SECTION  II. 

The  Encouragement  of  Literature,  fyc. 

Wisdom,  and   knowledge,  as  well   as  virtue,  diffused  generally 

among  the  body  of  the  people,  being  necessary  for  the  preservation 

of  their  rights  and  liberties ;  and  as  these  depend  on  spreading  the 


660  APPENDIX. 

opportunities  and  advantages  of  education  in  the  various  parts  of  the 
country,  and  among  the  different  orders  of  the  people,  it  shall  be 
the  duty  of  legislatures  and  magistrates,  in  all  future  periods  of  this 
Commonwealth,  to  cherish  the  interests  of  literature  and  the  sci- 
ences, and  all  seminaries  of  them ;  especially  the  University  at 
Cambridge,  public  schools,  and  grammar  schools  in  the  towns ;  to 
encourage  private  societies,  and  public  institutions,  rewards  and  im- 
munities, for  the  promotion  of  agriculture,  arts,  sciences,  commerce, 
trades,  manufactures,  and  a  natural  history  of  the  country ;  to  coun- 
tenance and  inculcate  the  principles  of  humanity  and  general  be- 
nevolence, public  and  private  charity,  industry  and  frugality,  hon- 
esty and  punctuality  in  their  dealings  ;  sincerity,  good  humor,  and 
all  social  affections,  and  generous  sentiments  among  the  people. 


CHAPTER  VI. 

OATHS  AND  SUBSCRIPTIONS;  INCOMPATIBILITY  OF  AND  EXCLUSION  FROM 
OFFICES  J  PECUNIARY  QUALIFICATIONS  J  COMMISSIONS  |  WRITS  |  CON- 
FIRMATION OF  LAWS  J  HABEAS  CORPUS  J  THE  ENACTING  STYLE  J  CON- 
TINUANCE OF  OFFICERS  J  PROVISION  FOR  A  FUTURE  REVISAL  OF  THE 
CONSTITUTION,   ETC. 

Art.  I.  Any  person  chosen  governor,  lieutenant  governor,  coun- 
sellor, senator,  or  representative,  and  accepting  the  trust,  shall,  be- 
fore he  proceed  to  execute  the  duties  of  his  place  or  office,  make 
and  subscribe  the  following  declaration,  viz. : 

"  I,  A.  B.  do  declare,  that  I  believe  the  Christian  religion,  and 
have  a  firm  persuasion  of  its  truth ;  and  that  I  am  seized  and  pos- 
sessed, in  my  own  right,  of  the  property  required  by  the  consti- 
tution, as  one  qualification  for  the  office  or  place  to  which  I  am 
elected." 

And  the  governor,  lieutenant  governor,  and  counsellors,  shall  make 
and  subscribe  the  said  declaration,  in  the  presence  of  the  two  houses 
of  assembly ;  and  the  senators  and  representatives,  first  elected  un- 
der this  constitution,  before  the  president  and  five  of  the  council  of 
the  former  constitution,  and,  forever  afterwards,  before  the  governor 
and  council  for  the  time  being. 

And  every  person,  chosen  to  either  of  the  places  or  offices  afore- 
said, as  also  any  person  appointed  or  commissioned  to  any  judicial, 
executive,  military,  or  other  office  under  the  government,  shall, 
before  he  enters  on  the  discharge  of  the  business  of  his  place  or 
office,  take  and  subscribe  the  following  declaration,  and  oaths  or 
affirmations,  viz.  : 

"  I,  A.  B.  do  truly  and  sincerely  acknowledge,  profess,  testify 
and  declare,  that  the  Commonwealth  of  Massachusetts  is,  and  of 
right  ought  to  be,  a  free,  sovereign- and  independent  state  ;  and  I  do 
swear,  that  I  will  bear  true  faith  and  allegiance  to  the  said  Com- 
monwealth, and  that  I  will  defend  the  same  against  traitorous  con- 
spiracies and  all  hostile  attempts  whatsoever  ;  and  that  I  do  renounce 


APPENDIX.  661 

and  abjure  all  allegiance,  subjection  and  obedience  to  the  king,  queen 
or  government  of  Great  Britain,  (as  the  case  may  be)  and  every  other 
foreign  power  whatsoever ;  and  that  no  foreign  prince,  person,  prel- 
ate, state  or  potentate  hath,  or  ought  to  have,  any  jurisdiction,  supe- 
riority, preeminence,  authority,  dispensing  or  other  power,  in  any 
matter,  civil,  ecclesiastical  or  spiritual,  within  this  Commonwealth  ; 
except  the  authority  and  power  which  is  or  may  be  vested  by  their 
constituents  in  the  Congress  of  the  United  States ;  and  I  do  further 
testify  and  declare,  that  no  man  or  body  of  men  hath  or  can  have 
any  right  to  absolve  or  discharge  me  from  the  obligation  of  this 
oath,  declaration  or  affirmation  ;  and  that  I  do  make  this  acknowl- 
edgment, profession,  testimony,  declaration,  denial,  renunciation 
and  abjuration,  heartily  and  truly,  according  to  the  common  mean- 
ing and  acceptation  of  the  foregoing  words,  without  any  equivoca- 
tion, mental  evasion,  or  secret  reservation  whatsoever.  So  help  me 
God." 

"I,  A.  B.  do  solemnly  swear  and  affirm,  that  I  will  faithfully  and 
impartially  discharge  and  perform  all  the  duties  incumbent  on  me  as 

;  according  to  the  best  of  my  abil- 
ities and  understanding,  agreeably  to  the  rules  and  regulations  of 
the  constitution,  and  the  laws  of  the  Commonwealth."  "  So  help 
me  God." 

Provided  always,  that  when  any  person,  chosen  or  appointed  as 
aforesaid,  shall  be  of  the  denomination  of  the  people  called  (Quakers, 
and  shall  decline  taking  the  said  oaths,  he  shall  make  his  affirmation 
in  the  foregoing  form,  and  subscribe  the  same,  omitting  the  words 
u  I  do  sivear"  u  and  abjure  "  u  oath  or  "  "  and  abjuration"  in  the 
first  oath  ;  and  in  the  second  oath,  the  words  "  swear  and;"  and  in 
each  of  them  the  words  "  So  help  me  God  ;"  subjoining  instead 
thereof,  "  This  I  do  under  the  fains  and  penalties  of  perjury." 

And  the  said  oaths  or  affirmations  shall  be  taken  and  subscribed 
by  the  governor,  lieutenant  governor,  and  counsellors,  before  the 
president  of  the  senate,  in  the  presence  of  the  two  houses  of  assem- 
bly ;  and  by  the  senators  and  representatives  first  elected  under  this 
constitution,  before  the  president  and  five  of  the  council  of  the  for- 
mer constitution ;  and  forever  afterwards  before  the  governor  and 
council  for  the  time  being ;  and  by  the  residue  of  the  officers  afore- 
said, before  such  persons,  and  in  such  manner,  as  from  time  to  time 
shall  be  prescribed  by  the  Legislature. 

II.  No  governor,  lieutenant  governor,  or  judge  of  the  supreme 
judicial  court,  shall  hold  any  other  office  or  place,  under  the  author- 
ity of  this  Commonwealth,  except  such  as  by  this  constitution  they 
are  admitted  to  hold,  saving  that  the  judges  of  the  said  court  may 
hold  the  offices  of  justices  of  the  peace  through  the  State:  nor  shall 
they  hold  any  other  place  or  office,  or  receive  any  pension  or  salary 
from  any  other  state  or  government  or  power  whatever. 

No  person  shall  be  capable  of  holding  or  exercising  at  the  same 
time,  within  this  State,  more  than  one  of  the  following  offices,  viz. : 
judge  of  probate — sheriff — register  of  probate — or  register  of  deeds  ; 


662  APPENDIX. 

and  never  more  than  any  two  offices,  which  are  to  be  held  by  ap- 
pointment of  the  governor,  or  the  governor  and  council,  or  the  sen- 
ate, or  the  house  of  representatives,  or  by  the  election  of  the  people 
of  the  State  at  large,  or  of  the  people  of  any  county,  military  offices, 
and  the  offices  of  justices  of  the  peace  excepted,  shall  be  held  by 
one  person. 

No  person  holding  the  office  of  judge  of  the  supreme  judicial  court 
— secretary — attorney  general — solicitor  general — treasurer  or  re- 
ceiver general — judge  of  probate — commissary  general — president, 
professor,  or  instructor  of  Harvard  College — sheriff — clerk  of  the 
house  of  representatives — register  of  probate — register  of  deeds — 
clerk  of  the  supreme  judicial  court — clerk  of  the  inferior  court  of 
common  pleas — or  officer  of  the  customs,  including  in  this  descrip- 
tion naval  officers — shall  at  the  same  time  have  a  seat  in  the  senate 
or  house  of  representatives ;  but  their  being  chosen  or  appointed  to, 
and  accepting  the  same,  shall  operate  as  a  resignation  of  their  seat 
in  the  senate  or  house  of  representatives  ;  and  the  place  so  vacated 
shall  be  filled  up. 

And  the  same  rule  shall  take  place  in  case  any  judge  of  the  said 
supreme  judicial  court,  or  judge  of  probate,  shall  accept  a  seat  in 
council ;  or  any  counsellor  shall  accept  of  either  of  those  offices  or 
places. 

And  no  person  shall  ever  be  admitted  to  hold  a  seat  in  the  Legis- 
lature, or  any  office  of  trust  or  importance  under  the  government  of 
this  Commonwealth,  who  shall,  in  the  due  course  of  law,  have  been 
convicted  of  bribery  or  corruption,  in  obtaining  an  election  or  ap- 
pointment. 

III.  In  all  cases,  where  sums  of  money  are  mentioned  in  this 
constitution,  the  value  thereof  shall  be  computed  in  silver  at  six 
shillings  and  eight  pence  per  ounce  ;  and  it  shall  be  in  the  power  of 
the  Legislature,  from  time  to  time,  to  increase  such  qualifications, 
as  to  property,  of  the  persons  to  be  elected  to  offices,  as  the  cir- 
cumstances of  the  Commonwealth  shall  require. 

IV.  All  commissions  shall  be  in  the  name  of  the  Commonwealth 
of  Massachusetts,  signed  by  the  governor,  and  attested  by  the  secre- 
tary or  his  deputy,  and  have  the  great  seal  of  the  Commonwealth 
affixed  thereto. 

V.  All  writs,  issuing  out  of  the  clerk's  office  in  any  of  the  courts 
of  law,  shall  be  in  the  name  of  the  Commonwealth  of  Massachu- 
setts ;  they  shall  be  under  the  seal  of  the  court  from  whence  they 
issue  ;  they  shall  bear  test  of  the  first  justice  of  the  court  to  which 
they  shall  be  returnable,  who  is  not  a  party,  and  be  signed  by  the 
clerk  of  such  court. 

VI.  All  the  laws,  which  have  heretofore  been  adopted,  used, 
and  approved  in  the  province,  colony  or  state  of  Massachusetts 
Bay,  and  usually  practised  on  in  the  courts  of  law,  shall  still  remain 
and  be  in  full  force,  until  altered  or  repealed  by  the  Legislature  ; 
such  parts  only  excepted  as  are  repugnant  to  the  rights  and  liberties 
contained  in  this  constitution. 


APPENDIX.  663 

VII.  The  privilege  and  benefit  of  the  writ  of  habeas  corpus 
shall  be  enjoyed  in  this  Commonwealth  in  the  most  free,  easy, 
cheap,  expeditions  and  ample  manner ;  and  shall  not  be  suspended 
by  the  Legislature,  except  upon  the  most  urgent  and  pressing  oc- 
casions, and  for  a  limited  time  not  exceeding  twelve  months. 

VIII.  The  enacting  style,  in  making  aud  passing  all  acts,  stat- 
utes and  laws,  shall  be — "Be  it  enacted  by  the  senate  and  house 
of  representatives,  in  General  Court  assembled,  and  by  the  authority 
of  the  same." 

IX.  To  the  end  there  may  be  no  failure  of  justice,  or  danger 
arise  to  the  Commonwealth,  from  a  change  of  the  form  of  govern- 
ment— all  officers,  civil  and  military,  holding  commissions  under 
the  government  and  people  of  Massachusetts  Bay  in  New  England, 
and  all  other  officers  of  the  said  government  and  people,  at  the  time 
this  constitution  shall  take  effect,  shall  have,  hold,  use,  exercise  and 
enjoy  all  the  powers  and  authority  to  them  granted  or  committed, 
until  other  persons  shall  be  appointed  in  their  stead ;  and  all  courts 
of  law  shall  proceed  in  the  execution  of  the  business  of  their  re- 
spective departments ;  and  all  the  executive  and  legislative  officers, 
bodies  and  powers  shall  continue  in  full  force,  in  the  enjoyment 
and  exercise  of  all  their  trusts,  employments  and  authority,  until 
the  General  Court  and  the  supreme  and  executive  officers  under 
this  constitution  are  designated  and  invested  with  their  respective 
trusts,  powers  and  authority. 

X.  In  order  the  more  effectually  to  adhere  to  the  principles  of 
the  constitution,  and  to  correct  those  violations  which  by  any 
means  may  be  made  therein,  as  well  as  to  form  such  alterations  as 
from  experience  shall  be  found  necessary — the  General  Court, 
which  shall  be  in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  ninety-five,  shall  issue  precepts  to  the  selectmen  of  the  several 
towns,  and  to  the  assessors  of  the  unincorporated  plantations, 
directing  them  to  convene  the  qualified  voters  of  their  respective 
towns  and  plantations,  for  the  purpose  of  collecting  their  sentiments 
on  the  necessity  or  expediency  of  revising  the  constitution,  in  order 
to  amendments. 

And  if  it  shall  appear  by  the  returns  made,  that  two  thirds  of  the 
qualified  voters  throughout  the  State,  who  shall  assemble  and  vote 
in  consequence  of  the  said  precepts,  are  in  favor  of  such  revision  or 
amendment,  the  General  Court  shall  issue  precepts,  or  direct  them 
to  be  issued  from  the  secretary's  office  to  the  several  towns,  to  elect 
delegates  to  meet  in  convention  for  the  purpose  aforesaid. 

The  said  delegates  to  be  chosen  in  the  same  manner  and  propor- 
tion as  their  representatives  in  the  second  branch  of  the  Legislature 
are  by  this  constitution  to  be  chosen. 

XI.  This  form  of  government  shall  be  enrolled  on  parchment, 
and  deposited  in  the  secretary's  office,  and  be  a  part  of  the  laws  of 
the  land ;  and  printed  copies  thereof  shall  be  prefixed  to  the  book 
containing  the  laws  of  this  Commonwealth,  in  all  future  editions  of 
the  said  laws. 


664  APPENDIX. 

ARTICLES  OF  AMENDMENT. 

ARTICLE    FIRST. 

If  any  bill  or  resolve  shall  be  objected  to,  and  not  approved  by 
the  governor ;  and  if  the  General  Court  shall  adjourn  within  five 
days  after  the  same  shall  have  been  laid  before  the  governor  for  his 
approbation,  and  thereby  prevent  his  returning  it  with  his  objec- 
tions, as  provided  by  the  constitution  ;  such  bill  or  resolve  shall 
not  become  a  law,  nor  have  force  as  such. 

ARTICLE     SECOND. 

The  General  Court  shall  have  full  power  and  authority  to  erect 
and  constitute  municipal  or  city  governments,  in  any  corporate 
town  or  towns  in  this  Commonwealth,  and  to  grant  to  the  inhab- 
itants thereof,  such  powers,  privileges  and  immunities,  not  repug- 
nant to  the  constitution,  as  the  General  Court  shall  deem  necessary 
or  expedient  for  the  regulation  and  government  thereof;  and  to 
prescribe  the  manner  of  calling  and  holding  public  meetings  of  the 
inhabitants,  in  wards  or  otherwise,  for  the  election  of  officers  under 
the  constitution,  and  the  manner  of  returning  the  votes  given  at 
such  meetings  :  Provided,  that  no  such  government  shall  be  erected 
or  constituted  in  any  town  not  containing  twelve  thousand  inhab- 
itants ;  nor  unless  it  be  with  the  consent,  and  on  the  application  of 
a  majority  of  the  inhabitants  of  such  town,  present  and  voting 
thereon,  pursuant  to  a  vote  at  a  meeting  duly  warned  and  holden 
for  that  purpose  :  and  provided  also,  that  all  by-laws,  made  by  such 
municipal  or  city  government,  shall  be  subject,  at  all  times,  to  be 
annulled  by  the  General  Court. 

ARTICLE    THIRD. 

Every  male  citizen  of  twenty-one  years  of  age  and  upwards, 
(excepting  paupers  and  persons  under  guardianship)  who  shall  have 
resided  within  the  Commonwealth  one  year,  and  within  the  town 
or  district  in  which  he  may  claim  a  right  to  vote,  six  calendar 
months,  next  preceding  any  election  of  governor,  lieutenant  gov- 
ernor, senators  or  representatives,  and  who  shall  have  paid,  by  him- 
self or  his  parent,  master  or  guardian,  any  state  or  county  tax, 
which  shall,  within  two  years  next  preceding  such  election,  have 
been  assessed  upon  him  in  any  town  or  district  of  this  Common- 
wealth ;  and  also  every  citizen  who  shall  be  by  law  exempted  from 
taxation,  and  who  shall  be  in  all  other  respects  qualified  as  above 
mentioned,  shall  have  a  right  to  vote  in  such  election  of  governor, 
lieutenant  governor,  senators  and  representatives,  and  no  other  per- 
son shall  be  entitled  to  vote  in  such  elections. 

ARTICLE    FOURTH. 

Notaries  public  shall  be  appointed  by  the  governor,  in  the  same 
manner  as  judicial  officers  are  appointed,  and  shall  hold  their  offices 
during  seven  years,  unless  sooner  removed  by  the  governor,  with 
the  consent  of  the  council,  upon  the  address  of  both  houses  of  the 
Legislature. 


APPENDIX.  665 

In  case  the  office  of  secretary  or  treasurer  of  the  Commonwealth 
shall  become  vacant  from  any  cause  during  the  recess  of  the 
General  Court,  the  governor,  with  the  advice  and  consent  of  the 
council,  shall  nominate  and  appoint,  under  such  regulations  as  may 
be  prescribed  by  law,  a  competent  and  suitable  person  to  such 
vacant  office,  who  shall  hold  the  same,  until  a  successor  shall  be 
appointed  by  the  General  Court. 

Whenever  the  exigencies  of  the  Commonwealth  shall  require  the 
appointment  of  a  commissary  general,  he  shall  be  nominated,  ap- 
pointed and  commissioned  in  such  manner  as  the  Legislature  may 
by  law  prescribe. 

All  officers  commissioned  to  command  in  the  militia,  may  be  re- 
moved from  office  in  such  manner  as  the  Legislature  may,  by  law, 
prescribe. 

ARTICLE    FIFTH. 

In  the  elections  of  captains  and  subalterns  of  the  militia,  all  the 
members  of  their  respective  companies,  as  well  those  under,  as  those 
above  the  age  of  twenty-one  years,  shall  have  a  right  to  vote. 

ARTICLE     SIXTH. 

Instead  of  the  oath  of  allegiance  prescribed  by  the  Constitution, 
the  following  oath  shall  be  taken  and  subscribed  by  every  person 
chosen  or  appointed  to  any  office,  civil  or  military,  under  the  gov- 
ernment of  this  Commonwealth,  before  he  shall  enter  upon  the  du- 
ties of  his  office,  to  wit : 

"  I,  A.  B.,  do  solemnly  swear  that  I  will  bear  true  faith  and  alle- 
giance to  the  Commonwealth  of  Massachusetts,  and  wiJl  support  the 
constitution  thereof.     So  help  me  God." 

Provided,  that  when  any  person  shall  be  of  the  denomination 
called  Quakers,  and  shall  decline  taking  said  oath,  he  shall  make 
his  affirmation  in  the  foregoing  form,  omitting  the  word  "  swear  " 
and  inserting  instead  thereof  the  word  "affirm,"  and  omitting  the 
words  "So  help  me  God,"  and  subjoining  instead  thereof,  the 
words,   "  This  I  do,  under  the  pains  and  penalties  of  perjury." 

ARTICLE     SEVENTH. 

No  oath,  declaration  or  subscription,  excepting  the  oath  prescribed 
in  the  preceding  article,  and  the  oath  of  office,  shall  be  required  of 
the  governor,  lieutenant  governor,  counsellors,  senators  or  represen- 
tatives, to  qualify  them  to  perform  the  duties  of  their  respective 
offices. 

ARTICLE    EIGHTH. 

No  judge  of  any  court  in  this  Commonwealth,  (except  the  court 
of  sessions)  and  no  person  holding  any  office  under  the  authority  of 
the  United  States,  (postmasters  excepted)  shall  at  the  same  time 
hold  the  office  of  governor,  lieutenant  governor  or  counsellor,  or 
have  a  seat  in  the  senate  or  house  of  representatives  of  this  Com- 
monwealth ;  and  no  judge  of  any  court  in  this  Commonwealth, 
(except  the  court  of  sessions)  nor  the  attorney  general,  solicitor 
84 


666  APPENDIX. 

general,  county  attorney,  clerk  of  any  court,  sheriff,  treasurer  and 
receiver  general,  register  of  probate,  nor  register  of  deeds,  shall  con- 
tinue to  hold  his  said  office  after  being  elected  a  member  of  the 
Congress  of  the  United  States  and  accepting  that  trust ;  but  the 
acceptance  of  such  trust,  by  any  of  the  officers  aforesaid,  shall  be 
deemed  and  taken  to  be  a  resignation  of  his  said  office  ;  and  judges 
of  the  courts  of  common  pleas  shall  hold  no  other  office  under  the 
government  of  this  Commonwealth,  the  office  of  justice  of  the  peace 
and  militia  offices  excepted. 

ARTICLE    NINTH. 

If  at  any  time  hereafter  any  specific  and  particular  amendment  or 
amendments  to  the  constitution  be  proposed  in  the  General  Court, 
and  agreed  to  by  a  majority  of  the  senators  and  two  thirds  of  the 
members  of  the  house  of  representatives  present  and  voting  thereon  ; 
such  proposed  amendment  or  amendments  shall  be  entered  on  the 
journals  of  the  two  houses,  with  the  yeas  and  nays  taken  thereon, 
and  referred  to  the  Oeneral  Court  then  next  to  be  chosen,  and  shall 
be  published  ;  and  if,  in  the  General  Court  next  chosen  as  aforesaid, 
such  proposed  amendment  or  amendments  shall  be  agreed  to  by  a 
majority  of  the  senators  and  two  thirds  of  the  members  of  the  house 
of  representatives  present  and  voting  thereon,  then  it  shall  be  the 
duty  of  the  General  Court  to  submit  such  proposed  amendment  or 
amendments  to  the  people,  and  if  they  shall  be  approved  and 
ratified  by  a  majority  of  the  qualified  voters  voting  thereon,  at 
meetings  legally  warned  and  holden  for  that  purpose,  they  shall  be- 
come part  of  the  constitution  of  this  Commonwealth. 

ARTICLE    TENTH. 

[Adopted  by  the  Legislatures  of  1829-30  and  1830-1  ;   approved  and  ratified  by 
the  people,  May  11,  1831.] 

The  political  year  shall  begin  on  the  first  Wednesday  of  January 
instead  of  the  last  Wednesday  of  May,  and  the  General  Court  shall 
assemble  every  year  on  the  said  first  Wednesday  of  January,  and 
shall  proceed,  at  that  session,  to  make  all  the  elections,  and  do  all 
the  other  acts,  which  are,  by  the  constitution,  required  to  be  made 
and  done  at  the  session  which  has  heretofore  commenced  on  the 
last  Wednesday  of  May.  And  the  General  Court  shall  be  dissolved 
on  the  day  next  preceding  the  first  Wednesday  of  January,  without 
any  proclamation  or  other  act  of  the  governor.  But  nothing  herein 
contained  shall  prevent  the  General  Court  from  assembling  at  such 
other  times  as  they  shall  judge  necessary,  or  when  called  together 
by  the  governor.  The  governor,  lieutenant  governor,  and  counsel- 
lors, shall  also  hold  their  respective  offices  for  one  year  next  fol- 
lowing the  first  Wednesday  of  January,  and  until  others  are  chosen 
and  qualified  in  their  stead. 

The  meeting  for  the  choice  of  governor,  lieutenant  governor, 
senators  and  representatives,  shall  be  held  on  the  second  Mon- 
day of  November  in  every  year ;  but  meetings  may  be  adjourned, 


APPENDIX.  667 

if  necessary,  for  the  choice  of  representatives,  to  the  next  day, 
and  again  to  the  next  succeeding  day,  bnt  no  further.  But  in 
case  a  second  meeting  shall  be  necessary  for  the  choice  of  repre- 
sentatives, such  meetings  shall  be  held  on  the  fourth  Monday  of 
the  same  month  of  November. 

All  the  other  provisions  of  the  constitution,  respecting  the  elec- 
tions and  proceedings  of  the  members  of  the  General  Court,  or  of 
any  other  officers  or  persons  whatever,  that  have  reference  to  the 
last  Wednesday  of  May  as  the  commencement  of  the  political  year, 
shall  be  so  far  altered,  as  to  have  like  reference  to  the  first  Wednes- 
day of  January. 

This  article  shall  go  into  operation  on  the  first  day  of  October, 
next  following  the  day  when  the  same  shall  be  duly  ratified  and 
adopted  as  an  amendment  of  the  constitution ;  and  the  governor, 
lieutenant  governor,  counsellors,  senators,  representatives,  and  all 
other  State  officers  who  are  usually  chosen,  and  who  shall  be 
chosen  for  the  current  year,  when  the  same  shall  go  into  operation, 
shall  hold  their  respective  offices  until  the  first  Wednesday  in  Jan- 
uary then  next  following,  and  until  others  are  chosen  and  qualified 
in  their  stead,  and  no  longer  ;  and  the  first  election  of  the  governor, 
lieutenant  governor,  senators  and  representatives,  to  be  had  in  virtue 
of  this  article,  shall  be  had  conformably  thereunto,  in  the  month  of 
November  following  the  day  on  which  the  same  shall  be  in  force 
and  go  into  operation,  pursuant  to  the  foregoing  provision. 
*  All  the  provisions  of  the  existing  constitution,  inconsistent  with 
the  provisions  herein  contained,  are  hereby  wholly  annulled. 

ARTICLE    ELEVENTH. 

[Adopted  by  the  Legislatures  of  1832  and  1833 ;  approved  and  ratified  by  the  people, 

November  11,  1833.] 

Instead  of  the  third  article  of  the  bill  of  rights,  the  following 
modification  and  amendment  thereof  is  substituted  : 

As  the  public  worship  of  God,  and  instructions  in  piety,  religion, 
and  morality,  promote  the  happiness  and  prosperity  of  a  people, 
and  the  security  of  a  republican  government ;  therefore,  the  several 
religious  societies  of  this  Commonwealth,  whether  corporate  or  im- 
incorporate,  at  any  meeting  legally  warned  and  holden  for  that 
purpose,  shall  ever  have  the  right  to  elect  their  pastors  or  religious 
teachers,  to  contract  with  them  for  their  support,  to  raise  money  for 
erecting  and  repairing  houses  for  public  worship,  for  the  mainte- 
nance of  religious  instruction,  and  for  the  payment  of  necessary 
expenses :  And  all  persons  belonging  to  any  religious  society  shall 
be  taken  and  held  to  be  members,  until  they  shall  file  with  the 
clerk  of  such  society  a  written  notice  declaring  the  dissolution  of 
their  membership,  and  thenceforth  shall  not  be  liable  for  any  grant 
or  contract  which  may  be  thereafter  made  or  entered  into  by  such 
society:  And  all  religious  sects  and  denominations,  demeaning 
themselves  peaceably,  and  as  good  citizens  of  the  Commonwealth, 
shall  be  equally  under  the  protection  of  the  law  ;  and  no  subordi- 


668  APPENDIX. 

nation  of  any  one  sect  or  denomination  to  another  shall  ever  be 
established  by  law. 

ARTICLE    TWELFTH. 

[Adopted  by  the  Legislatures  of  1835  and  1836,  approved  and  ratified  by  the  people 
Nov.  11,  1836,  and  promulgated  March  24,  1837.] 

In  order  to  provide  for  a  representation  of  the  citizens  of  this 
Commonwealth,  founded  upon  the  principles  of  equality,  a  census 
of  the  ratable  polls  in  each  city,  town,  and  district  of  the  Com- 
monwealth, on  the  first  day  of  May,  shall  be  taken  and  returned 
into  the  Secretary's  office,  in  such  manner  as  the  Legislature  shall 
provide  within  the  month  of  May,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  thirty-seven;  and  in  every  tenth  year 
thereafter  in  the  month  of  May,  in  manner  aforesaid  ;  and  each 
town  or  city  having  three  hundred  ratable  polls  at  the  last  pre- 
ceding decennial  census  of  polls,  may  elect  one  representative,  and 
for  every  four  hundred  and  fifty  ratable  polls  in  addition  to  the  first 
three  hundred,  one  representative  more. 

Any  town  having  less  than  three  hundred  ratable  polls  shall  be 
represented  thus  ;  the  whole  number  of  ratable  polls,  at  the  last 
preceding  decennial  census  of  polls,  shall  be  multiplied  by  ten,  and 
the  product  divided  by  three  hundred,  and  such  town  may  elect 
one  representative  as  many  years  within  ten  years  as  three  hundred 
is  contained  in  the  product  aforesaid. 

Any  city  or  town  having  ratable  polls  enough  to  elect  one  or 
more  representatives,  with  any  number  of  polls,beyond  the  necessary- 
number,  may  be  represented  as  to  that  surplus  number  by  multi- 
plying such  surplus  number  by  ten,  and  dividing  the  product  by 
four  hundred  and  fifty ;  and  such  city  or  town  may  elect  one  addi- 
tional representative  as  many  years  within  the  ten  years  as  four 
hundred  and  fifty  is  contained  in  the  product  aforesaid. 

Any  two  or  more  of  the  several  towns  and  districts  may,  by  con- 
sent of  a  majority  of  the  legal  voters  present  at  a  legal  meeting  in 
each  of  said  towns  and  districts  respectively,  called  for  that  purpose 
and  held  previous  to  the  first  day  of  July,  in  the  year  in  which  the 
decennial  census  of  polls  shall  be  taken,  form  themselves  into  a 
representative  district,  to  continue  until  the  next  decennial  census 
of  polls,  for  the  election  of  a  representative  or  representatives ;  and 
such  district  shall  have  all  the  rights,  in  regard  to  representation, 
which  would  belong  to  a  town  containing  the  same  number  of 
ratable  polls. 

The  governor  and  council  shall  ascertain  and  determine,  within 
the  months  of  July  and  August,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  thirty-seven,  according  to  the  foregoing,  princi- 
ples, the  number  of  representatives  which  each  city,  town  and  rep- 
resentative district  is  entitled  to  elect,  and  the  number  of  years 
within  the  period  of  ten  years,  then  next  ensuing,  that  each  city, 
town  and  representative  district  may  elect  an  additional  representa- 
tive ;  and  where  any  town  has  not  a  sufficient  number  of  polls  to 
elect  a  representative  each  year,  then  how  many  years  within  the 


APPENDIX.  669 

ten  years  such  town  may  elect  a  representative  ;  and  the  same  shall 
be  done  once  in  ten  years  thereafter,  by  the  governor  and  council, 
and  the  number  of  ratable  polls  in  each  decennial  census  of  polls 
shall  determine  the  number  of  representatives  which  each  city,  town 
and  representative  district  may  elect  as  aforesaid  ;  and  when  the 
number  of  representatives,  to  be  elected  by  each  city,  town  or  rep- 
resentative district,  is  ascertained  and  determined  as  aforesaid,  the 
governor  shall  cause  the  same  to  be  published  forthwith  for  the  in- 
formation of  the  people,  and  that  number  shall  remain  fixed  and 
unalterable  for  the  period  of  ten  years. 

All  the  provisions  of  the  existing  constitution  inconsistent  with 
the  provisions  herein  contained,  are  hereby  wholly  annulled. 

ARTICLE    THIRTEENTH. 

[Adopted  by  the  Legislatures  of  1839  and  1840,  approved  and  ratified  by  the  people, 
April  6,  1840,  and  promulgated  April  17,  1840.*] 

A  census  of  the  inhabitants  of  each  city  and  town,  on  the  first 
day  of  May,  shall  be  taken,  and  returned  into  the  secretary's  office 
on  or  before  the  last  day  of  June,  of  the  year  1840,  and  of  every 
tenth  year  thereafter,  which  census  shall  determine  the  appor- 
tionment of  senators  and  representatives  for  the  term  of  ten  years. 

The  several  senatorial  districts  now  existing  shall  be  permanent. 
The  senate  shall  consist  of  forty  members  ;  and  in  the  year  1840 
and  every  tenth  year  thereafter,  the  governor  and  council  shall  as- 
sign the  number  of  senators  to  be  chosen  in  each  district,  according 
to  the  number  of  inhabitants  in  the  same.  But,  in  all  cases,  at  least 
one  senator  shall  be  assigned  to  each  district. 

The  members  of  the  house  of  representatives  shall  be  apportioned 
in  the  following  manner  :  every  town  or  city  containing  twelve 
hundred  inhabitants  may  elect  one  representative ;  and  twenty-four 
hundred  inhabitants  shall  be  the  mean  increasing  number  which 
shall  entitle  it  to  an  additional  representative. 

Every  town  containing  less  than  twelve  hundred  inhabitants, 
shall  be  entitled  to  elect  a  representative  as  many  times,  within  ten 
years,  as  the  number  one  hundred  and  sixty  is  contained  in  the 
number  of  the  inhabitants  of  said  town. 

Such  towns  may  also  elect  one  representative  for  the  year  in 
which  the  valuation  of  estates  within  the  Commonwealth,  shall  be 
settled. 

Any  two  or  more  of  the  several  towns  may,  by  consent  of  a  ma- 
jority of  the  legal  voters  present  at  a  legal  meeting,  in  each  of  said 
towns  respectively,  called  for  that  purpose,  and  held  before  the  first 
day  of  August  in  the  year  1840,  and  every  tenth  year  thereafter, 
form  themselves  into  a  representative  district,  to  continue  for  the 
term  of  ten  years ;  and  such  district  shall  have  all  the  rights,  in  re- 
gard to  representation,  which  would  belong  to  a  town  containing 
the  same  number  of  inhabitants. 

•  ['I  he  vote  of  the  people,  April  6,  1840,  on  ratifying  the  thirteenth  amendment,  was  24,884  af- 
firmative, to  4,912  negative.] 


670  APPENDIX. 

The  number  of  inhabitants  which  shall  entitle  a  town  to  elect 
one  representative,  and  the  mean  increasing  number  which  shall 
entitle  a  town  or  city  to  elect  more  than  one,  and  also  the  number 
by  which  the  population  of  towns,  not  entitled  to  a  representative 
every  year,  is  to  be  divided,  shall  be  increased  respectively,  by  one 
tenth  of  the  numbers  above  mentioned,  whenever  the  population  of 
the  Commonwealth  shall  have  increased  to  770,000,  and  for  every 
additional  increase  of  70,000  inhabitants,  the  same  addition  of  one 
tenth  shall  be  made  respectively  to  the  said  numbers  above  men- 
tioned. 

In  the  year  of  each  decennial  census  the  governor  and  council 
shall,  before  the  first  day  of  September,  apportion  the  number  of 
representatives  which  each  city,  town,  and  representative  district  is 
entitled  to  elect,  and  ascertain  how  many  years,  within  ten  years, 
any  town  may  elect  a  representative  which  is  not  entitled  to  elect 
one  every  year,  and  the  governor  shall  cause  the  same  to  be  pub- 
lished forthwith. 

Nine  counsellors  shall  be  annually  chosen  from  among  the  people 
at  large,  on  the  first  Wednesday  of  January,  or  as  soon  thereafter  as 
may  be,  by  the  joint  ballot  of  the  senators  and  representatives,  as- 
sembled in  one  room,  who  shall,  as  soon  as  may  be,  in  like  manner 
fill  up  any  vacancies  that  may  happen  in  the  council,  by  death, 
resignation  or  otherwise.  No  person  shall  be  elected  a  counsellor 
who  has  not  been  an  inhabitant  of  this  Commonwealth  for  the 
term  of  five  years  immediately  preceding  his  election ;  and  not 
not  more  than  one  counsellor  shall  be  chosen  from  any  one  senato- 
rial district  in  the  Commonwealth. 

No  possession  of  a  freehold,  or  of  any  other  estate,  shall  be  re- 
quired as  a  qualification  for  holding  a  seat  in  either  branch  of  the 
General  Court,  or  in  the  executive  council. 


INDEX. 


Abbreviations, — m.  for  motion — res.  resolution — s.  speech.    Where  neither  abbreviation  precedes 
any  subject,  s.  is  in  general  to  be  understood;  denoting  either  a  speech  or  an  expression  of  opinion. 


Abbott — m.  on  amendments,  p.  601;    s.  on  third  article,  302, 576  ;  m.  do.  582;   city  govern- 
ments, 196  ;   m.  and  s.  session  of  General  Court,  93,  94 ;    filing  informations,  468 ;  order,  566; 
course  of  proceeding,  576  ;   house  of  representatives,  536  ;  senate,  272. 
Accounts — committee  on,  65,  494;  report.  567,  604. 

Adams  of  Quincy — chosen  president,  9  ;  committee  to  inform  him,  11  ;  he  declines,  12;  resolutions 
complimentary  to,  10,  11  ;  his  answer;  12,  13;  seat  assigned  him,  14;  entry  into  the  convention, 
15;  has  leave  of  absence,  330;  m.  third  article,  427,  466,  470  ;  in.  thanks  to  Boston  Atheneeum, 
25;  city  governments,  193;  council,  204,  216;  governor,  220;  course  of  proceeding,  89,  169; 
senate,  27  7. 

Address  to  the  people — committee  on,  415,  425  ;   address  reported,  604,  609,  622. 

Affirmations — see  Oaths. 

Alvord — incompatibility  of  offices,  403;  m.  do.  403;  s.  h.  of  rep.  521 ;  m.  senate,  552;  s.  do. 
532,  552. 

Amendments — committee  on  submitting  to  the  people,  126;  report,  191.  222;  resolution  on 
submitting  articles,  192,  222,  569,  571,  609,  612;  res.  town  meetings,  192,  222,  569,  573,  609,  612; 
res.  committee  to  receive  returns  of  votes.  191.  570,  571,  600,  603,  604,  608,  612  :  committee,  608; 
proceedings  of,  000,  000  ;  res.  copies  of  amendments,  &c.  191,  610,  613;  res.  on  making  articles, 
191,223,^36,238;  res.  mode  of  people's  voting  oil  articles,  192,  571,600.  601,  604,  608,  612; 
m.  for  a  committee  to  reduce  to  form,  260;  committee,  272 — ordered  to  report,  491 — reports.  526, 
567,  604,  609,  612  to  621— reports  discussed,  527,  569,  573,  575,  600  to  611  ;  m.  time  of  amend- 
ments going  into  effect.  272;  form  of  final  question  on  the  articles,  603,  613  ;  articles  read  twice, 
amended  and  adopted,  610,  612;  articles  as  finally  agreed  on,  6 1.3  ;  res.  future  amendments,  125, 
188,  403,  407,  413,  415,  620;  amendments  since  adopted,  666  to  670. 

Apthorf — ratification  of  amendments,  569,  602;  m.  do.  607;  future  amendments,  405,  413 ; 
commissary  general,  101  ;  council,  143,  210  ;  m.  do.  155;  lieutenant  governor,  131,  336;  m.  do. 
154;  militia,  379;  newspapers,  35;  order,  419  ;  course  of  proceeding,  152;  h.  of  rep.  331,  536  ; 
rules.  20,  36. 

Austin  of  Boston — amendments,  602;  m.  on  do.  575;  future  amendments,  404,  406;  third 
article,  455  ;  defence  by  self  and  counsel.  463,  466  ;  delegates  to  congress,  104  ;  representatives  to 
congress  and  electors  of  president,  lt)fi,  113;  in.  do  104  to  113;  council,  210,  342;  Charlestown 
election,  62,  63 ;  m.  elections,  260;  Harvard  University,  493  ;  judiciary.  522  ;  in.  do.  473  to  489  ; 
newspapers,  33  ;  order,  235  ;  h.  of  rep.  516  ;   rules.  20  ;   senate,  270,  496  ;   lest,  173;   voters,  252. 

Austin  of  Charlestown — declaration  of  rights,  351,  461;  defence  by  self  and  counsel,  464; 
Charlestown  election,  63;  m.  on  elections,  68, 52;  Harvard  University,  547;  libels,  541;  lieutenant 
governor,  130  ;   h.  of  rep.  511;    s.  and  m.  secretary  and  treasurer,  102,  103;   treasurer,  99. 

Baldwin  of  Boston— third  article,  365,  396,  422  561,  582,  595  ;  m.  do.  396,  398— 560,  567,  583 
to  591  ;  council,  146  ;  in.  do.  154;  Harvard  University.  74,  77.  493,  547;  oaths,  197,  408  ;  course 
of  proceeding,  118,567,595;   h.  of  rep.  327;   rules,  41 ;'  test,  180  ;   voters,  255. 

Balhw  in  of  Egremont — uniting  towns,  330,  oil. 

Bangs  of  Hawley — uniting  towns,  330. 

Bangs  of  Worcester — m  report  on  elections.  48  ;  Plymouth  election,  50;  lieut.  governor,  127; 
m.  do.  127  to  133;  m.  minors  in  militia  voting,  66,  377,  381,  389,  394,  619. 

Banister — future  amendments,  407  ;  third  article.  392  ;  h.  of  reps.  509,  519  ;  senate,  324. 

Banks — res.  fur  making  stockholders  liable,  532,  5,58.  542,  551. 

Bar  i'I.ett  of  Mcclford — third  article,  591  ;  m.  do.  591  to  600,  615. 

BaRTLETT  of  Plymouth — Plymouth  election,  52. 

Beach — m.  compensation  of  members,  32 ;  judiciary,  491  ;  in.  do.  533  ;  militia,  379  ;  h.  of  reps. 
356,491  ;  in.  voters,  234. 

Bills  and  resolves — res.  for  governor's  returning,  67,  97,  105,  122,  615. 

Blake  of  Boston — on  resolutions  on  JMr.  Adams.  1 1  ;  on  address,  416  ;  amendments,  226,  462, 
607;  future  amendments.  188,4116;  third  article, 36,  II.  120,430,561,592,598;  city  governments, 
193,  196  ;  commissary  general,  100,  101  ;  revising  constitution,  27.  28  ;  council,  135,  145,  149,  155, 
157,  153,  159.  203.  213/215.  337,  339,537;  m.  do.  203.  204,  537— 215.  216,336,  337,  339;  declaration 
of  rights,  317,  462,  164;  Charlestown  election,  63;  Harvard  University,  86  ;  libels,  540.  541  ;  lieut. 
gov.  130;  order,  118,  155,  158 ;  as  chairman,  216;  course  of  proceeding,  235.  418,  473,  509;  m. 
do.  235,  567  ;  h.  of  rep.  327,  498,  500.  518  ;  rules,  19;  senate,  240,  273,  323,  1'J7.  198,  5t0;  ex- 
emption from  taxes,  469  ;  voters,  248,  411,412,  555;  m.  do.  257,  411,  412  ;  chairman  of  committee 
of  whole,  217  to  222. 


672 


INDEX. 


Bliss  of  Springfield— amendments,  237;  third  article,  396,  400;  council,  135,  139,141,144, 
156,158,159,205,215;  m.  do.  139,  158,  215;  session  of  General  Court,  93;  newspapers,  34; 
order,  109;   rules,  41  ;   m.  do.  18,47;   t>-st,  181;   chairman  of  committee  on  declaration  of  rights, 

32  ;  report,  199  ;  new  draft  of  report,  271,  554  to  567. 

Bond  of  Boston — amendments,  237,  607;  banks,  542  ;  commissary  general,  99  ;  council,  135, 
241,537;  newspapers,  35;  order,  156,  159,234;  course  of  proceeding,  235,  508,  567,  603  ;  h.  of 
rep.  508,  513,  520  ;   rules,  40. 

Boston  Athenaeum — use  of.  offered,  25  ;   vole  of  thanks,  25. 

Boylston — amendments,  569  ;  third  article,  470,  599  ;  m.  do.  461,  470  ;  Harvard  University, 
547;   school  fund,  575  ;   uniting-  towns,  330  ;   voters,  552. 

Chairmen  of  committees  of  the  whole — on  Harvard  University,  Varnum,  69  to  85,  85  to  87  ; 
General  Court,  secretary,  &c,  delegates,  &c,  Webster,  87  to  96,  97  to  104 ;  lieut.  governor, 
council,  &c.,  Varnum,  lz6  to  136,  139  to  150,  154  to  159  ;  oaths,  &c,  Dana,  160  to  179,  179  to  189, 
19^  to  198 — Varnum,  198  ;  lieut.  governor, council,  &c,  Varnum,  201  to  205,  208  to  216  ;  governor, 
militia,  &c,  Blake,  217  to  222  ;   senate,  &c,  Varnum,  228  to  235. 

Chaplains — 15,  25. 

Childs — amendments,  237  ;  future  amendments,  188;  third  article,  357,  384,  557  ;  m.  do.  347, 
357,  381  to  393,  557,  559  ;  committees,  30  ;  m.  do.  30,  32  ;  session  of  General  Court,  96 ;  judiciary, 
479  ;  lieutenant  governor,  129  ;  senate,  234,  295. 

City  Governments— 57, 125,  192  to  196,407  to  409,  415,  615. 

Colby — third  ariicle,  559. 

Commissary  General — appointment  of,  99  to  102,  619. 

Committee  to  examine  votes  on  the  amendments,  proceedings  of,  634. 

Constitution — mode  of  revising,  21,  22,24;  res.  for  parcelling  it  out  to  ten  committees,  23  to 
32;  committees,  32,  33;  made  standing  committees,  123  ;  see  amendments;   complete,  640. 

Convention — list  of  delegates, 5;  assembled  and  called  to  order,  9  ;  credentials  of  members, 
9;  secretary,!);  presidents,  13,368;  furnished  with   copies  of  constitution,  14 ;  with   newspapers, 

33  to  35  ;  with  journal  of  debates,  &c,  538,  567  ;  prayers  at  opening  of  session,  14 ;  at  close,  61 1  ; 
seats,  14,  15;  elections,  14;  messenger,  14;  monitors,  15,  472;  chaplains,  15;  rules,  14  to  20,35, 
425,  461,  554,  565  ;  compensation,  21,  25,  32  ;  pay-roll,  21,  520,  567,  601  ;  accounts,  65,  494,  567, 
604;  sits  on  Christmas  day,  402  ;  adjourns  without  day,  611. 

Congress — delegates  to,  referred,  24,  30  ;  committee,  33  ;  report,  67,  68,  104  to  114,123;  m. 
for  choice  of  representatives,  and  electors  of  president,  &c,  in  districts,  104  to  114;  m  for  com- 
missioning representatives,  104. 

Council,  &c. — res.  for  referring, 23,  30  ;  committee,  33,  48,  57  ;  report,  105  ;  discussed,  &c, 
126  to  136,  139  to  150,  154  to  159,  201  to  205,  208  to  216,  238,  332  to  346,  536,  533,  552  ;  res.  on 
number  and  quorum,  105,  126,  133,  240,  336.  536,  552,  618  ;  153,  376,  377,  394,  618  ;  189,  240.  504, 
532,618;  res.  for  choice  by  Legislature,  105,135,138  to  150,155,158,201  to  216.  238,  336  to 
345' 536,537,  552,  613;  res.  on  limitation,  as  to  residence,  105,239,  344,536.552.  618;  res.  on 
last  Wednesday  in  May,  105,  345,  537,  552,  618  ;  res.  on  qualifying,  135,  154,572.590,591,618; 
res.  on  qualifications,  154, — 537,552,618;  res.  on  supplying  vacancies,  154,  537,  552,618  ;  prop- 
osition for  choosing  by  districts,  157,  201  to  216, — 238,  339  10  344,536  ;  for  as  many  candidates  as 
senators,  distinct  from  senators,  336  to  339  ;  lor  general  ticket,  215; — 215.  216  ;  for  senate  to  desig- 
nate, 344;  for  people  to  designate,  233  ;  for  senate  to  be  the  council,  201,  209,  332;  for  abolishing 
the  council,  493;  for  making  no  alteration  in  ihe  mode  of  choosing,  204,  205,  537;  for  do.  except 
limitino-  one  to  a  district,  215  ;  for  notifying  acceptance,  155  ;  on  time  ami  mode  of  choosing,  260, 
261  ;  lor  vacating  seat  of  senator  designated,  238 — 238,  344;  for  disqualifying  counsellors  for  any 
other  office,  539,  551. 

Cranston  of  Marlborough — h.  of  rep.  327. 

Cummings  of  Salem — third  article,  598  ;  judiciary.  479. 

Dana  of  Groton — on  resolutions  on  Mr.  Adams,  11  ;  amendments, 570,  601,  606,  610;  m.  larger 
apartment,  56  ;  third  article,  600  ;  m.  do.  461  ;  revising  constitution,  21,  24,  26  ;  s.  At  m  copies  of 
constitution  48  ;  council.  539  ;  defence  by  self  and  counsel,  463;  reports  on  elections,  48,  57 ;  Ply- 
mouth election,  49  ;  Charlestown  do.  57,64;  report  on  General  Court,  66  ;  s.  on  do.  87,  94  ;  m.  on 
do.  94,97;  governor,  97,  219,  221 ;  Harvard  University,  85,  492,  496,  547  ;  judiciary,  471,  489  ; 
lieut.  gov.  131  ;  newspapers,  33,  34;  m.  do.  33  ;  order,  119,  144.  158,  218,  500  ;  (as  chairman,) 
167,594;  course  of  proceeding.  567 ;  h.  of  rep.  245,520;  rules,  36,  41  ;  m.  do.  36,42;  senate, 
240J  279,  324,496;  m.  do.  21,  24—496,497;  solicitor  general,  471,  487  ;  res.  do  336,471,487, 
489;  voters,  254,  256,  412,  552;  m.  do.  412;  report  on  do.  494,520;  chairman  of  committee  of 
whole,  160  to  179—179  to  189—192  to  198—376  to  381—593  to  596;  resigns  the  chair  to  vole 
for  president  of  United  States,  198. 

Davis  D.  of  Boston — amendments,  220,  214,  571  ;  third  article,  399;  council,  135;  m.  do.  135  ; 
Plvmouth  election,  54;  governor,  219  ;  Harvard  University,  78  ;  judiciary,  478  ;  h.  of  rep.  245; 
course  of  proceeding,  399. 

Davis  J.  of  Boston — on  resolutions  on  Mr.  Adams,  11  ;  third  article,  470  ;  defence  by  self  and 
counsel,  405. 

Dawes — amendments,  570,  600;  third  article,  351,  430;  defence  by  self  and  counsel,  464;  order, 
218;  course  of  proceeding,  208,  342;  rules,  19  ;    yeas  and  nays,  119. 

Dean  of  Boston— third  article,  383  ;  test,  182. 

Dearborn — printed  ballots,  521  ;  commissary  general,  101;  council,  332;  res.  lieut.  gov. 
counril  &c.  201,207,332,334;  Harvard  University,  491.  546;  course  of  proceeding,  32,241; 
res.  h.  of  rep.  259  ;  senate  257,  258;  res.  do.  249,  251  to  322;  test,  171. 

Debt— imprisonment  for,  84,  138,  490,  491. 

Declaration  of  Rights— res.  for  referring,  23.  24,  28  ;  committee,  32,  33,  48  ;  report,  199; 
recommitted,  239;  new  draft  of  report,  271,  553,  556,  566 ;  same  discussed,  347  to  376,  381  to 
402,  417  to  471,  536   to  566;  res.   substituting  "person"  and  "  citizen,"  for  "subject,"  350,556; 


INDEX.  673 

res.  attendance  on  public  worship,  361,  362.  46" I,  557,  566,  613  ;  res.  ii>r  supporting  public  worship, 
352  to  376,  .'381  to  402,  417  to  425,  461,  557  to  565,613;  res.  on  mode  of  do.  352  to  376,381  to 
402,  417  to  460,  564,  565;  proposition  on  third  article,  346,  357,  161  ;  do.  346,  tt'i  to  125;  do  352 
to  357,  399,  402,416,  417;  do.  582;  do. 401,  416,  418;  do.  144,560  176  to 582, 591,  613; 

do.  394,395;  do.  395,397;  do.  417,461;  do.  346, 357  lo  376,381  to  393,557,558;  do.  398, 401, 
446  to  460;  do.  593  to  600,603,613,611;  do.  426,461,469;  res.  on  defence,  by  sell' and  counsel, 
462  to  468,  566,614;  res.  on  maintaining  armies,  462,  565:  res.  on  levying  taxes,  &c.  1' 
re9.  on  quartering  soldiers,  462,  565  ;  res.  on  law  martial,  462, 565 ;  rea.  on  tiling  informations 
and  presentment  by  grand  jury,  416,  467.  468  ;  commuted,  468  ;  committee,  471 ;  report,  538,  571, 
614;  res.  on  exemption  from  taxes,  416,  467,  46*8. 

Deeds — registry  of  by  town  clerks,  575. 

Doane  of  Cohasset — uniting  towns,  330. 

Doane  of  Phillipston — third  article, 401. 

Draper  of  Spencer — m.  for  committee  of  accounts,  65;  chairman  of  it,  65;  reports,  604;  m. 
journal  of  debates,  &c,  538  ;   m.  course  of  oroceeding,  376  ;   h.  of  rep.  245. 

Dutton  of  Boston — amendments,  571  ;  third  article,  368,  451,  586  ;  council,  139,  147,  215,  338. 
343;  on  report  on  elections,  52  ;  Charlestown  election,  (51  ;  m.  on  Plymouth  do.  52  to  57  ;  libels, 
540;    lieut.  gov.  128;   senate,  297;   voters,  2  17. 

Dwight— m.  newspapers,  34 ;  order,  502  ;  course  of  proceeding,  426  ;  h.  of  rep.  331.  507  ;  m. 
on  do.  508  ;  senate,  &c,  259. 

Elections  and  returns — committee  on,  14;  report,  48  to  52;  do.  57  to  65  ;  report  of  com- 
mittee on  senate,  &c,  on  elections,  190,  191;  report  discussed,  261,  329,  336 ;  res.  on  electing 
state  officers  on  same  day,  and  fixing  the  day,  191,  260,  329,  336,  615 ;  res.  on  elections  of  United 
States'  officers,  and  town  and  county  officers,  191,  261,  329  ;   res.  on  printed  ballots,  521. 

Ellis  of  Deiiham — chairman  of  committee  on  pay  roll,  21  ;   reports,  567,  601. 

Farwell — m.  course  of  proceeding,  256. 

Fay — amendments,  237,  607  ;  future  amendments,  115  ;  third  article,  566,  531  ;  m.  do.  566,  567, 
576  to  582, 591,  615;  council,  134;  declaration  of  rights,  350;  informations,  468;  militia,  378; 
secretary,  &c,  123;  m.  do.  124;   sheriffs,  590;   chairman  of  committee  of  whole,  471. 

Fisher  of  Lancaster — m.  militia,  377. 

Fisher  of  Westborough — m  and  s.  address,  415;  m.  salaries  of  gov.  and  judges,  538,  542, 
551,552;   s.  do.  551,  552. 

Flint— amendments,  226  ;  third  article,  351,  372,  429  ;  m.  do.  560,  566,  592 ;  council.  145,  343 ; 
lieut.  gov.  133  ;  course  of  proceeding,  235,  426  ;  h.  of  rep.  326,  327,  516,  535  ;  test,  186 ;  voters, 
254. 

Foster — address,  415;  amendments,  224  ;  m.  do.  610;  future  amendments,  188  ;  third  article, 
382,  396,  401,  448,  451,  579,  582  ;  cities,  193;  council,  1  H,  345;  session  of  Gen.  Court,  90,  118  ; 
governor,  219  ;  oaths,  198  ;  course  of  proceeding,  238  ;  h.  of  rep.  328  ;  rules,  19,  46  ;  senate.  234; 
test,  174;   voters,  246,  254,  412. 

Fox — uniting  towns,  330 ;  m.  representation  of  small  towns,  533. 

Frazer— h.  of  rep.  521,  533. 

Freeman  of  Boston — third  article,  366  ;   Harvard  University,  76  ;  h.  of  rep.  242;   senate,  233. 

Freeman  of  Sandwich— amendments,  612;  third  article.  580  ;  council.  140,  148.  155;  m.  do. 
135.155;  declaration  of  rights,  351  ;  Harvard  University,  492  ;  judiciary,  477,  481  ;  militia,377; 
m.  do.  272,  377  ;  h.  of  rep.  326;  m.  senate.  324;  solicitor  general,  472,  487;  exempting  from 
taxes,  469;  test,  183. 

General  Court — referred,  23,  24,  28;  committee,  32  ;  report,  66;   report  debated,  87  to  96, 

104,  106,  114 ;   res.  on  two  branches,  96,  104,  106,  114 ;    res.  on  time  of  session,  67,  87  lo  96,  104, 

105,  114  to  122,  614;  res.  on  governor  returning  bills,  67,  97,  104.  105,  122,615;  res.  on  dissolving, 
153,376,381,394,615. 

Gifford — plan  for  h.  of  rep.  532. 

Governor — referred,  23,  30 ;  committee,  33,  48,  57  ;  report,  153  ;  report  discussed,  217  to  221 ; 
new  draft  of  report,  376  ;  res.  on  returning  bills  and  dissolving  Gen.  Court — see  General  Court; 
res.  on  pecuniary  qualifications,  153,  217  to  221  ;  res.  on  religious  do.  153;  res.  on  substitutes  l<>r 
first  Monday  of  April  and  last  Wednesday  of  May,  153,  376,  377,  394,  614;  res.  on  power  in  cases 
of  marriage,  &c.  138,  489,  491,  526  ;  res.  on  requiring  information  from  executive  officers,  154; 
res.  on  power  over  the  military  forces,  153  ;  res.  on  salary,  154,  538,  542,  551 ,  552  ;  res.  on  gov- 
ernor forming'  the  sole  executive,  493. 

Gray  of  Boston — res.  on  frame  of  government,  493;  senate,  496. 

Gray  of  Somerset — uniting  towns,  330. 

Harvard  University — referred,  24,  30;  committee,  33,  48.  57  ;  report,  65,  66  ;  res.  propos- 
ing no  alteration,  66,69  to  87,  491  ;  m.  for  expunging  the  constitutional  provisions,  85;  subject 
referred  to  another  committee,  492,  493  ;  report,  527  ;   res.  reported,  532,  539,  542  to  556,  619. 

Hazard — future  amendments,  406  ;   third  article,  390,  597  ;   h.  of  rep.  330. 

Hinckley — filing  informations,  467,  571  ;  m.  do.  416,  467  to  472  ;  chairman  of  committee  on 
do.  471  ;   report,  538,  571 ;   report  and  s.  on  libels,  538  ;  lieut.  gov.  132  ;  oaths,  408. 

Hoar  of  Concord— third  article,  352,  398,  419,  454.  576,  582,  595.  599  ;  m.  do.  416  to  425,  562— 
461;  Plymouth  election,  53;  lieut.  gov.  131;  course  of  proceedings,  426  ;  senate,  325;  voters, 
248. 

Holmes  of  Rochester — amendments,  226  ;  third  article.  384,  421  ;  judiciary,  481  ;  lieut.gov. 
133  ;   rules,  38  ;  two  sessions  a  day,  160. 

Hoyt — future  amendments,  414;  banks,  542  ;  commissary  general,  101  ;  council.  208;  militia, 
379;  newspapers,  34;  h.  of  rep.  214.  245,  325,  326,  328,  512.  518;  m.  do.  326  ;  m.  and  s.  two 
sessions  a  day,  150,  152  ;  exemption  from  taxes,  469  ;   voters,  555. 

Hubbard  of  Boston — third  article,  351,  397,  470;  m.  preamble  of  constitution,  28 ;  council, 
345;  defence  by  self  and  counsel,  463;  elections,  261,  337;    filing  informations,  468;   Harvard 

85 


674  INDEX. 

University,  86,  518,  550;  judiciary,  474;   m.  reports  of  committees,  65;   h.  of  rep.  328;  m.  do. 
328;   rules,  41  ;   m.  school  fund,  65  ;  exemption  from  taxes,  470  ;   test,  172;   m.  do.  173  to  187. 

Hussey — council,  210;   test,  168,  J  86. 

Hyde  of  Lenox — m.  to  adjourn  to  February,  402,  410  ;  m.  third  article,  416,  462-596  ;  solicitor 
general,  472. 

Incompatibility  of  offices— res.  on,  124,  187,  188,  403,  413,  620;  do.  539,  552. 

Informations,  filing  of — see  Declaration  of  Sights. 

Jackson  of  Boston — s.  and  m.  for  a  committee  on  mode  of  submitting  amendments  to  the  people, 
125;  appointed  chairman,  126 ;  report,  191,  222  to  227;  s.  mode  of  amending  constitution,  220, 
222,  223,  463  ;  chairman  of  committee  for  reducing  amendments  to  form,  272  ;  reports,  526,  567, 
604,  608,  609,  610  ;  s.  amendments  reduced  to  form,  573,  574,  600,  601,  609  ;  in.  do.  600-610 ;  time 
of  amendments  going  into  operation,  570,  571 ;  ratification  of,  570,  600,  601 ;  third  article,  399, 
560,561;  m  do.  400 ;  defence  by  self  and  counsel,  463;  elections,  260;  governor,  220;  libels, 
541 ;  course  of  proceeding,  509,  510;   h.  of  rep.  510;  m.  do.  509,  610. 

Judiciary  power — referred,  23,  30;  committee,  33,  48,  57  ;  report,  136  to  138  ;  report  discussed, 
472  to  486,  489  to  491,521  to  5-6  ;  res.  on  tenure  ol  judicial  officers,  courts  of  equity  and  appeals,  137, 
138,  472  to  486 ;  as  amended,  439,  491,  521,  526,619;  res.  on  judges  answering  qaestions,  138, 
489,491,526,619;  res.  on  jurisdiction  in  cases  of  marriage,  &c.  and  probate  appeals,  138,  489, 
491,526;  res.  on  tenure  of  office  of  justices  of  peace  and  notaries,  138,  489,  526,  619  ;  res.  on 
salaries,  154  ;   do.  538,  542,  551,  552  ;    do.  575. 

Justice  of  peace — tenure  of  office,  138,  490,  526,  619. 

Keyes  of  Concord — defence  by  self  and  counsel,  466;  do.  463  ;  judiciary,  472;  senate,  233; 
m.  do.  233,234;   voters,  233;   m.  do.  233,  234,  238-249  ;   see  Voters. 

Kneel  and — newspapers,  35 ;   senate,  304. 

Lamson — uniting  towns,  330. 

Lawrence  of  Grotou — amendments,  603;  m.  on  do.  603;  Charlestown  election,  59;  session 
of  General  Court,  94;  incompatibility  of  officers,  403  ;  course  of  proceeding,  152,425,508;  h.  of 
rep.  244,  331,  518,  533 ;   senate,  241,  264,  323,  498,  532. 

Leach — res.  on  banks,  532,  538,  542,  551. 

Legislature — proceedings  of,  publishing  amendments,  635.    See  General  Court. 

Leland — council,  157,  203,  344  ;  res.  on  do.  239,  344;  course  of  proceeding,  157,  237;  rules, 
39;  senate,  241,499;  m.  do.  499;   voters,  256,  552 ;   m.  do.  521-552. 

Leonard  of  Sturbridge — third  article,  421. 

Libels— 471,538,  539,551. 

Lieut.  Gov.  ccc — referred,  23,  30;  committee,  33,  48,  57  :  report,  105  ;  discussed,  etc  126  to 
136,  138  to  150,  154  to  159,  201  to  216,  239,  332  to  346,  536,  539,  552  ;  res.  on  qualifications,  105, 
126,154,239,332,536,552,614;  res.  on  compensation,  127  to  133;  res.  for  being  president  of 
senate,  201,  208,  334 ;   res.  for  abolishing  the  office,  538. 

Lincoln  of  Boston — third  article,  402,  419,  423,  445,  558  ;  m.  on  elections,  337. 

Lincoln,  L.  of  Worcester — amendments,  225,  463,  569,  575;  future  amendments,  405;  third 
article,  445,  452,  581 ,  589,  592,  596  ;  m.  do.  594;  council,  143,  148,  214,  241  ;  m.  do.  143  to  150  ; 
defence  by  self  and  counsel,  466  ;  Charlestown  election,  64;  elections,  260;  session  of  General 
Cou  rt,  96.  121 ;  incompatibility  of  offices,  405;  judiciary,  480;  course  of  proceeding,  569  ;  h.  of 
rep.  327,  501,  517,  534,  536  ;  res.  do.  259,  331  ;  m.  do.  327,  500;  senate,  259,  265,  277,  299,  302, 
497,501,503;  m.  do.  497,  501,  503;  sheriffs,  589;  treasurer,  102;  voters,  553,  556;  m.  do.  521, 
553 ;  m.  yeas  and  nays,  85. 

Little  J. — council,  345;  session  of  General  Court,  120;  h.  of  rep.  517. 

Locke  of  Billeriea — m.  amendments,  575 ;  third  article,  397;  council,  140  ;  h.  of  rep.  245,  518  ; 
senate,  276,  277,  302 ;  m.  voters,  521. 

Longley — m.  and  s.  h.  of  rep.  242,244;  uniting  towns,  330. 

Low— third  article,  399,  420,  424,  445,  580. 

Lyman  of  Northampton— council,  538  ;  m.  do.  538,  551 ;  res.  h.  of  rep.  259,  332,  493,  509. 

Mack — militia,  379. 

Martin — leave  of  absence,  596;  amendments,  601,  604,606;  m.  do.  572;  third  article,  375, 
425;  cities,  195;  council,  157,  241;  defence  by  self  and  counsel,  465;  Harvard  University,  73, 
491 ;  m.  do.  73, 76  ;  militia,  378 ;  h.  of  rep.  243,  325,  509,  512. 515, 517, 535 ;  rules,  39,  47 ;  senate, 
322,496;   voters,  555. 

Mattoon — governor,  220 ;   militia,  378  ;   course  of  proceeding,  235;  rules,  19,  20. 

Messenger  of  Convention — appointed,  14. 

Militia— referred,  23,  24,  30;  committee,  33,  48,  57;  report,  152.  217  to  222 ;  new  draft  of 
report,  376,  378,  380,  394 ;  res.  on  exemption  from  military  duty,  65,  152, 153,  380 ;  do.  272,  378, 
380 ;  res.  on  exempting  militia  from  poll  tax,  85,  153,  381  ;  res.  on  minors  in  militia  voting,  66, 
152,  377,  378,  394,  619  ;  res.  on  governor's  power  over  the  military  and  naval  forces,  153  ;  res.  on 
elections  of  captains  and  subalterns,  152,  163;  res.  on  removal  of  officers,  152,  153,  376,381,394, 
619  ;  res.  on  obsolete  clause  on  continental  army,  153;  res.  on  division  of  militia,  153;  res.  on  gov- 
ernor's requiring  information  from  executive  officers,  154. 

Ministers  of  the  gospel— res.  exempting  from  taxes,  416,  468,  470. 
Mitchell  of  Bridgewater — lieut.  gov.  133;  m.  and  s.  h.  of  rep.  534. 
Monitors — 15,472. 

Morton  of  Dorchester — amendments,  237;  rep.  to  congress,  104,  123 ;  m.  do.  104;  council,  141. 
157,  202,  339,  536  ;  m.  do.  157,  202,  208  to  216—239,  339  to  344,  536—537 ;  defence  by  self  and 
counsel,  466  ;  libels,  540  ;  order,  45,  234,  236,  418  ;  as  chairman,  473  ;  rules,  20,  40,  45  ;  m.  do.  20, 
42  to  46;  chairman  of  committee  of  whole,  472  to  491. 

Mudge  Enoch — amendments,  226,  236;  m.  do.  236;  res.  scruples  about  bearing  arms,  65,  152, 
380  ;  s.  do.  380;  res.  imprisonment  for  debt,  84,  138,  490,  491 ;  oaths,  198. 
Naval  officer— 68,  98  to  105,  122. 
Nelson— third  article,  352.  363. 


index.  675 

Newhali.  of  Lynn6eld— third  article,  894,  .'31)5  ;  ni.  do.  394,  395;  m.  to  adjourn  over  Christmas 
day.  402;  m.  oaths,  198;  h.  ol  rep.  326,  521. 

Newspapers — in.  to  furnish  members  with,  33  to  35. 

Nichols — amendments,  601  ;  m.  future  amendments,  188;  third  article,  391 ,  '145,  596;  in.  do. 
562;  city  governments,  196  ;  m.  do.  196;  m.  governor.  518  :  m.  Harvard  University,  85  ;  militia,377 ; 
oaths,  196;  res  for  substituting  affirmations,  8  4,  I  J  I,  196,  108;  qualifications  for  office,  218 ;  m.  do. 
218;  order,  169;  h.  of  rep.  329;  senate,  &e.  258,  332,  498;  m.  do.  258;  m.  voters, 257,   HO,  HI. 

Notaries  public — res.  on  mode  of  appointment,  68,  98  to  105,  122 — 153,376,381,  394,  619  ;  res. 
on  tenure  of  office,  138,  619—391,  619. 

Oaths,  &c. — referred,  24,30;  committee,  32;  reports,  124,  125;  reports  discussed,  cVc.  160 
to  189,  192  to  199,205,  207,  402  to  409,  413,  416;  res.  on  oaihs  and  affirmations  of  allegiance, 
(without  abjuration)  and  office,  (without  test)  124,  160  to  188,  205,  207,  402,  403,  413,  620;  res.  on 
substituting  affirmations,  84,  121,  196,  409. 

Offices — res.  on  incompatibility  of,  124,  187,  403,413,  620;  do.  539,  551;  res.  on  pecuniary 
qualifications  for,  217. 

Paige  of  Hardwick — amendments,  606;  m.  do.  606;  h.  of  rep.  328,  329;  exemption  from 
taxes,  470. 

Parker  of  Boston — chosen  president,  13  ;  address  upon  it,  13  ;  vote  of  thanks  to,  567 ;  a 
in  reply,  568  ;  s.  and  res.  on  Air.  Adams,  9,  10,  11,  12;  amendments,  104;  third  article,  398,  401, 
427,447;  m.  do.  427;  rep.  to  congress,  101;  council,  136,  140,  154,  155,  202,  334,  340;  res.  do. 
136,  154—590,591,618;  declaration  of  rights,  163;  defence  by  self  and  counsel.  163,  164  ;  governor, 
217;  Harvard  University,  77  ;  filing  informations,  167  ;  m.  do.  467;  libels,  5'0;  militia,  379  ;  no- 
taries, 102;  order,  157  ;  (as  president)  109,  118,  207,  237,  106,  501,  502,509,  552.  561.  . 
610;  course  of  proceeding.  127,  155,  218,  233,  357;  h.  of  rep.  328;  senate,  261.  323;  m.  do.  324; 
solicitor  general,  471. 

Parker  of  Charlestown — his  election  contested,  14,  57  to  65;  amendments,  226  ;  future  amend- 
ments, 188;  m.  do.  415;  m.  Harvard  University,  610;  order,  501;  h.  of  rep.  519. 

Parker  of  Southborough — h.  of  rep.  536. 

Pay  Roll — committee  on,  21  ;  report,  520,  567,  601. 

Phelps  of  Belchertown — third  article,  531  ;  m.  h.  of  rep.  535. 

Phelps  of  Chester — m.  future  amendments,  403;  third  article,  257  ;  m.  do.  316,  257  ;  exemption 
from  taxes,  468,  469 ;  m.  do.  416,  468,  469. 

Phillips  J. — future  amendments,  105;  third  article,  421,453,  593;  cities,  610;  council,  205; 
Charlestown  election,  58,63;  Harvard  University,  77;  judiciary,  473;  rules,  20;  senate,  499; 
test,  167,  186. 

Phillips,  VV. — calls  the  Convention  to  order,  9  ;  m.  seats,  14 

Pickman — chairman  of  committee  on  lieut.  gov.  &c.  33;  report,  105;  chairman  of  committee  of 
whole,  538  to  551;  amendments,  601;  future  amendments,  415;  third  article,  597;  cities,  195; 
council,  133,  134,  135,  143,  150,  334 ;  m.  do.  143  to  150, 143  to  150,  537,  552,  619 ;  session  of  Gen- 
eral Court,  88,  119,  120 ;  judiciary,  472;  lieut.  gov.  126;  newspapers,  34;  order,  (as  chairman) 
550;  course  of  proceeding,  233;  h.  of  rep.  332,  504;  rules,  20,  42,  61 ;  sheriffs,  591. 

Porter,  M.  of  Hadley — Charlestown  election,  58. 

Porter,  S.  of  Hadley — Harvard  University,  492;  m.  h.  of  rep.  331,  532,  618;  solicitor  general, 
487. 

Prescott — chairman  of  com.  on  senate,  &c,  32 ;  reports,  189  to  191;  do.  of  com.  on  busi- 
ness to  be  acted  upon,  346;  reports.  410;  s.  amendments,  574;  third  article,  420;  revising  con- 
stitution, 22  ;  res.  do.  23,24,  26  to  33;  m.  elections,  260 ;  governor,  219;  judiciary,  477;  order, 
501 ;  course  of  proceeding,  234,  408,  495  ;  h.  of  rep.  243.  245.  325.  506,  516,  517,  520.  533  ;  m.  d. 
533—536  ;  res.  do.  322  to  329,  433,  435,  527,  535,  6 14—323,  330,  33 1.517,  527, 615—501,  519,  535, 
612  ;  senate,  234,  241,  280,  323,  495,  504,  552  ;  senate,  &c,  228,  258,  495. 

President  of  Convention — see  Adams  and  Parker. 

Prince  of  Boston — cities,  196  ;  m.  copies  of  constitution.  49  ;  council,  156;  defence  by  sell 
and  counsel,  461 ;  session  of  General  Court,  96,  120;  governor,  219  ;  judiciary,  523  ;  m.  do.  487, 
488 — 491;  m.  libels,  471.539,  542,  551;  in.  pravers.  14;  course  of  proceeding,  222;  h.  of  rep. 
516  ;  rules,  19  ;  test,  163,  402. 

Proclamation  promulgating  the  amendments,  639. 

Quincy — chairman  of  committee  on  Harvard  University,  33 ;  report,  65;  chairman  of  com.  of 
whole,  272  to  332;  s.  amendments,  104,  224,  527,  570.600,  601,605,  606;  m.  do.  570;  future 
amendments,  404,  405,  413;  third  article,  376,  395,  401,  471,  502  ;  banks,  542  ;  cities,  196  ;  council, 
215  539;  m.  do.  539 ;  session  of  General  Court,  114;  governor.  217;  Harvard  University,  69, 
72,73,  74,86,545,550;  m.  do.  491,532;  newspapers,  35;  order,  95.  118.  167.207.217.  227, 
503;  (as  chairman,)  328;  course  of  proceeding,  65,  236.  259.  376,  399,  101  :  b.  of  rep.  500, 516, 
517;  rules,  18,  19, 46  ;  senate,  496,  500;  solicitor  general. 487;  voters.  250;  m.  yeas  and  nays, 
527. 

RaNTOUL — third  article,  428  ;  h.  of  rep.  516,  532;  solicitor  general.  487;  voters.  553. 

Registry  of  Deeds — in  every  town,  575. 

Religion — see  Declaration  of  Rights. 

Representatives — see  Congress  and  Senate. 

Richards  of  Plainfield — amendments,  606;  third  article,  593. 

Richardson  of  Hingham — third  article.  129 ;  cities,  195;  in.  revising  constitution,  179  ;  Har- 
vard Universilv, 69,  492.  .'>!.'•.  54  1.515.  550:  judiciary,  473  ;  voters. 

Rules  and"  Orders — 15  to  21,  m  to  47,  125.  461,  554,  565. 

Russell  of  Boston — course  of  proceeding,  21,  99. 

Saltonstall — amendments,  227,  605  ;  future  amendments,  114;  third  article.  381,  121.455. 
500,598;  m.  do.  346 — 352  to  357,  400,417;  cities,  194;  council.  145;  session  of  General  Court, 
90;  libels,  540;  newspapers,  34;  course  of  proceeding.  218.  592  ;  senate,  274;  lest,  205;  voters. 
554;  m  do.  553,554. 


676  INDEX. 

Savage — address,  415;  third  article,  391 ;  declaration  of  rights,  350;  Harvard  University,  80 ; 
judiciary,  475 ;  course  of  proceeding,  233;  rules,  40;  exemption  from  taxes,  470;  test,  183; 
voters  255. 

School  Fund,  66, 113,  575. 

Secretary  of  Commonwealth,  treasurer,  &c, — referred,  23,  24,  30;  committee,  33 ;  report, 
68;  report  discussed,  Ate.  98  to  106,  124 ;  res.  for  filling  vacancies  in  offices,  123,154,217,377, 
394,  619  ;  secretary's  report  on  copies  of  constitution,  57. 

Secretary  of  Convention — chosen,  9  ;   ordered  to  transmit  articles  of  amendment,  &c.  610. 

Senate  and  House  of  Representatives — referred,  23,  24,  30;  committee,  32,  48,  57  ;  report  of 
committee,  189  to  192  ;  discussed,  &c,  228  to  235,  240  to  248,  322,  323.  495  to  519,  532  to  536. 

Senate— res.  on  the  number,  189,  228  to  235,  240.  242,  495  to  501,  532,  615;  do.  21,  24; 
do.  227,  228;  do.  491  ;  res.  on  number  of  districts.  189.  241,  501,  503,  532,  552,  615;  res.  for 
forming  districts,  189,  241,  532,  615;  do.  249,258,  322,  493;  do.  323;  res.  apportioning  to  the 
several  districts,  189,  241,  323,  324,  532,  615  ;  res.  for  substituting  January  for  May,  in  this  part  of 
constitution,  189,  241,  504,  532,  614  ;  res.  on  quorum  of  council  for  examining  returns,  189,  241, 
504,532,615;  res.  on  quorum  of  senate,  189,  241,  504,  532,  615  ;  do.  493  ;  res.  on  privilege  from 
arrest,  190,  246.  519,  535,618;  proposition  for  basis  on  population.  21,  24;  do.  248,  257  to  322  ; 
do.  323 ;  do.  497,  500,  502 ;  res.  on  qualification  of  senators,  240.  330  ;  do.  323  ;  res.  for  senators 
for  two  years,  495  ;   res.  for  frame  of  government,  200,  207,  334 ;   do.  491. 

House  of  Representatives — res.  on  number  of  inhabitants  for  one  rep.  189,  241  to  248, 
£04  to  513,  532,  533,  614;  res.  on  the  increasing  number,  190,  248,513,  533,  614;  res.  on  small 
towns  sending  every  other  year,  190,  249,  513,  533,  614 ;  res.  for  classing  towns,  190,  249,  513,  533, 
614  ;  do.  331,  519,  533,  614;  res.  on  towns  increasing  to  twelve  hundred  inhabitants,  190,  249,  513, 
514,533,614;  res.  on  new  towns,  190,  249,  514,  533,  615;  do.  533;  res.  for  paying  rep.  from 
treasurv,  190,  249,  514  to  518,  533,  614 ;  res.  for  paying  by  towns  509 ;  do.  519  ;  res.  on  quorum, 
190,  249.  519,  535^  614  ;  res.  on  privilege  from  arrest.  190,  246,  519,  536,  618  ;  res.  for  small  towns 
uniting,  323  to  331,519,  521.  536,  614,  618  ;  res.  on  representation  on  year  of  valuation,  323,  330, 
331,519  527,614;  res.  for  limiting  the  number  of  rep.  501,  520,  536,  614,  618;  system  for  h.  of  rep. 
242,244;  do.  258,  332.  493,  509,  511;  do.  260,323;  do.  491 ;  do.  259,  331 ;  do.  532;  res.  on  quali- 
fications of  rep.  242,  332. 

Shaw — banks, 542;  cities,  192;  defence  by  self  and  counsel,  566;  judiciary,  475;  chairman  of 
committee  on  rules,  14  ;   reports,  15,  35;    s.  rules,  36. 

Shepley — s.  and  m.  amendments,  601. 

Sheriff — res.  for  electing  by  counties,  409, 572,  590,  591. 

Sibley — amendments,  574;  third  article,  586;  council,  157;  m.  do.  260,  343;  declaration  of 
rights,' 463, 467;  defence  by  self  and  counsel,  467;  m.  for  reconsideration,  157!  h.  of  rep.  326i 
rules.  19,  20,36;  senate,  241,  498;    two  sessions  a  day,  336,  voters,  553. 

Slocum  H. — address,  415;  future  amendments,  405  ;  third  article,  371  ;  revising  constitution, 
26;  council,  157,345;  defence  by  sell  and  counsel,  466;  on  report  on  elections.  51  ,  Plymouth 
election,  56;  session  of  General  Court,  118  ;  judiciary,  481  ;  lieut.  gov.  128;  militia,  380;  h.  of 
rep.  518;   rules,  18;  senate,  240,  265  ;  exemption  from  taxes,  469;  test,  179;  voters,  252. 

Solicitor  General — res.  for  abolishing  the  office,  336,  471,  487,  488. 

Sporr — res.  for  registering  deeds  in  each  town,  575  ;   res.  school  fund,  575. 

Sprague — third  article,  382. 

Starkweather — future  amendments, 406  ;  m.  business  required  to  be  acted  on,  346;  council, 
155,  539  ;  session  of  General  Court,  95  ;  judiciary.  479  ;  course  of  proceeding,  567  ;  h.  of  rep.  245  ; 
senate,  498 ;  sheriffs,  409. 

Stebbins  of  Granville — m.  salaries  of  judges,  575. 

Stone  of  Stow,  (fee— third  article,  445  ;  council, 204;  h.  of  rep.  245,  536;  m.  do.  246  ;  test, 
177. 

Story,  of  Salem— on  resolutions  on  Mr.  Adams,  12 ;  third  article,  561 ,  577,  582, 588,  597,  603  ; 
m.  do.  597;  report  on  do.  603;  banks,  542;  commissary  general,  99;  m.  do.  99,  100;  appointing 
committees,  31  ;  districting  for  rep.  to  congress,  electors,  &c,  1C9;  council.  212;  Plymouth  elec- 
tion, 55;  Harvard  University,  544;  chairman  of  committee  on  judiciary,  33  ;  reports  on  do.  136; 
judiciary  489,  523,  551.  552;  justice  of  peace,  490  ;  lieut.  gov.  132;  order.499,  500  ;  course  of  pro- 
ceeding,  51,  90,  208,  495,  567  ;  h.  of  rep.  497,  499,  500,  502,  517,  536  ;  rules,  20  ;  senate,  283,  497, 
499, 500,  502  ;  m.  senate  and  h.  of  rep.  498, 500, 502  ;  two  sessions  a  day,  150. 

Stowell — amendments,  602;  course  of  proceeding,  491  ;  third  article,  363,  422;  Harvard 
University,  491 ;  h.  of  rep.  331,  521. 

Sturgis — amendments,  602;  banks,  542;  commissary  general,  101;  council,  155,  333,  341  ; 
m. do.  155;  governor,  219;  m.  pay  roll,  521 ;  course  of  proceeding,  222,  567  ;  h.  of  rep.  328,  521  ; 
m.  do.  520;  in.  rule,  552;  exemption  from  taxes,  469  ;  test,  185. 

Sullivan  of  Brookline — third  article,  391,  400. 

Sullivan  of  Boston — chairman  of  committee  to  prepare  address,  425 ;  reports  address,  604, 
622;  amendments,  462,  602  ;  m.  do.  602;  third  article,  396  ;  s.  and  m.  copies  of  constitution,  48  ; 
Plymouth  election,  51  ;  militia,  379  ;  h  of  rep.  245,  494;  res.  do.  494;  senate,  266  ;  solicitor  gen- 
eralise; m.  voters,  521. 

Taft — m.  council, 538 

Talbot— militia,  379. 

Test— omitted  in  oath  of  office.  124,  160  to  187,  205,  207,  402,  403,  413,620. 

Thompson  of  Charlestown — Charlestown  election,  62,  65. 

Thorntmke— third  article, 399,  594  ;  m.  do.  593;  banks,  542;  council, 339;  m.  Harvard  Uni- 
versity, 491  ;  course  of  proceeding,  567  ;  exemption  from  taxes,  470,  voters,  253. 

Tilden  of  Hanson — third  article,  398  ;  h.  of  rep.  330. 

Tillinghast — third  article.  398,  401,  419,  558  ;  m.  do.  596  ;  council.  216  ;  m.  do.  216  ;  m.  ses- 


INDEX.  677 

sion  of  General  Court,  95,  96  ;  Harvard  University,  492, 546 ;  militia,  380;  newspapers,  33  ;  order, 
592  ;  h.  of  rep.  519  ;  exemption  from  taxes,  470. 

Trask — judiciary,  473. 

Treasurer — see  Secretary  of  Commonwealth. 

Tuckerman— third  article,  360,  365  ;  Harvard  University,  77  ;  lest,  169  ;  m.  do.  205,  207,  329, 
402,  403. 

Turner — m.  chaplains,  15;  m.  compensation  of  members,  21  ;  council,  539;  m.  pay-roll,  21. 

Valentine— militia,  377  ;  sheriffs.  409,  m.  do.  409,  572,  590,  591. 

Varnum — amendments,  224,573,574,602,  605,  609;  m.  on  do.  573,  574  ;  future  amendments,  414; 
third  article,  562,566,585,595;  revising  constitution,  22,  24,  26,  28 ;  chairman  of  committee  of 
whole, 69  to  87,  126  to  136,  139  to  150,  154  to  159,  193,  201  to  116,  228  to  235,  347  to  376,  381  to 
402,  417  to  471  ;  votes  in  the  chair,  445;  session  of  General  Court,  96;  chairman  of  committee  on 
governor,  militia,  33,  &c  ;  reports,  152,  377  ;  governor,  217  ;  m.  do.  219;  Harvard  University, 
542;  militia,  377,  380;  notaries,  102  ;  m.  do.  394;  order,  326,  595  ;  (as  chairman,)  131,  144,  156, 
158,  202,  234,352,  357,  418,  444;  m.  pay-roll,  567  ;  m.  of  thanks  to  the  president,  567  ;  m.  presi- 
dent's, 569  ;  appointed  president  pro  lem.  368  ;  course  of  proceeding, 49,  152,  160,  238,242,407, 
461,494,511;  m  do.  410,611;  h.  of  rep.  498,511,534,535;  rules,  38,  42,  46,  47, -161  •  m.  do. 
425,  461 ;  senate,  498  ;  voters,  256,  412,  553,  554 ;  m.  do.  521. 

Voters — proposition  on  qualification  of  229,  231,238,  246  to  257,410,  411 ;  subject  committed 
413  ;  report,  494,  520,  553,  554,  618. 

Votes  of  the  people  on  the  amendments,  633. 

Walker  of  Templeton — third  article,  564  ;  session  of  General  Court,  120  ;  incompatibility  of 
offices,  403  ;  test,  185. 

Walter — amendments,  606  ;  city  corporations,  57  ;  m.  do.  57,  125,  188, 192  to  196,  407;  re- 
ports on  journal  of  debates,  &c,  567  ;  solicitor  general,  487. 

Ward — h.  of  rep.  327  ;  m.  do.  325  to  328  ;  chairman  of  committee  on  secretary,  &c,  33;  re- 
ports, 68,  217;  s.  do.  98,  100,  101  to  103,  152;  m.  secretary  and  treasurer,  152;  solicitor  general, 
472. 

Ware— third  article,  399,  418  ;  m.  militia, 381  ;  m.  test,  187. 

Webster,  D. — mode  of  amending  constitution,  224,  462  ;  revising  do.  29  ;  ratification  of  amend- 
ments, 603,  604;  m.  amendments,  259.  272.  603,  604  ;  future  amendments,  188,  404,  407,  413  ;  m. 
do.  188—404 ;  third  article,  413,  414,  446,  458,  593,  594,  597  ;  m.  do.  415,  592  ;  m.  chaplains,  15,  25  ; 
appointing  committees,  30  ;  m.  standing  committees,  123  ;  chairman  of  committee  of  whole,  87  to 
104,  240  to  271,332  to  346,  376  to  591  ;  votes,  in  the  chair,  257  ;  council,  142,  149,  156,  158, 159, 
209,539;  m.  do  149;  declaration  of  rights,  462,  464 ;  defence  by  self  and  counsel,  464;  Harvard 
University,  85,  492,  543,  549  ;  chairman  of  committee  on  do.  493  ;  report,  527,  539,  544  to  556  ; 
incompatibility  of  offices,  187,  404,  539  ;  m.  do.  404  ;  filing  informations  572  ;  judiciary,  460,  481  ; 
m.  do.  486,  489  ;  newspapers,  35  ;  chairman  of  committee  on  oaths,  &c,  33  :  reports,  124;  s.  oaths, 
196,198,408;  order,  86,  119,  156,  159, 167,  218,  238,  326,  418,  405,  491,  495,501,  594;  (as  chair- 
man) 95,99,102,260,342;  course  of  proceeding,  218,  222,  236,  330,  480,  508,  544,  595,  604  ;  m. 
do.  259,  604  ;  h.  of  rep.  326,  327,  508  ;  districting  the  state  for  electors,  &c,  and  rep.  to  congress, 
112  ;  rules,  18,  20,  42,  45  ;  m.  do.  40—45,  47  ;  senate,  304 ;  m.  do.  21  ;  test,  160  ;  voters,  407,  553  ; 
m.  do.  553. 

Welles  J.  of  Boston — banks,  542;  chairman  of  committee  on  delegates  to  congress, 33  ;  re- 
ports, 67  ;  newspapers,  35  ;  h.  of  rep.  326,  328  ;  m.  do.  326  ;  exemption  from  taxes,  470. 

Wells  S.  A.  of  Boston — amendments,  602 ;  cities,  196  ;  m.  do.  610 ;  council,  239  ;  m.  do.  139 
239  ;  session  of  General  Court,  95  ;  h.  of  rep.  328,  514  ;  rules,  39,  42  ;  test,  175. 

Whittemore — third  article,  401  ;  council,  343  ;  m.  governor,  221. 

Will  ard  of  Fitchburg— incompatibility  of  offices,  403  ;  res.  exempting  militia  from  poll  tax 
85,  153,  381. 

Wilde— amendments,  225;  third  article,  357,  372,  399,  418,424,  446, -449,  583  ;  course  of  pro- 
ceeding, 399,  409,  418,  446,  593  ;  senate,  269,  324 ;  test,  177. 

Williams  of  Beverly—  amendments,  226  ;  thiro  article,  352,381,  398,  401,  425,  427,  415,  458, 
564;  res.  do.  398,  425,  446  to  460  ;  m.  oaths,  198;  course  of  proceeding,  401,418  ;  lest,  186. 

Yeas  and  IN  ays — taken  on  third  article,  559;  on  mode  of  revising  constitution,  27,30;  on 
session  of  General  Court,  122;  on  h.  of  rep.  512  ;  on  senate,  501  ;  m.  on  yeas  and  nays,  85;  do 
527. 

Year  Political — article  of  amendment  respecting.  573, 574,  614,  624. 


ERRATA. 

Page  32,  the  note  at  the  bottom  should  be  enclosed  in  square  brackets  [  ]. 

Page  327,  first  line,  for  "  Mr.  Crandon  of  Rochester,"  read  "Mr.  Cranston  of  Marlborough.'' 

Page  521,  line  23,  insert  Stowei.l  between  Prescott  and  Sturgis. 


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LOS  ANGELES,  CALIFORNIA  90095-1388 

Return  this  material  to  the  library  from  which  it  was  borrowed. 


JUN3  0 


-Ci>3 


20C3 


1UE  2  WKS  fflOM  DATE 


I 


r*" 


JCLA  YRL/ 


RECEIVED 


50»n  3,'68(H9242sl 


L    U 


,UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 

ii  mil  mil  mil 


AA    000  811945    5 


